Pettinger v. Fast

Citations

• 87 Cal. 461
• 25 P. 680
• 1891 Cal. LEXIS 1004

Syllabus

<p>Vendor and Purchaser— Sharing Profits of Resale. — A contract for the sale of a farm for a specified sum, and. one half of the excess above that sum for which the farm can he resold, does not require an actual resale in order to fix liability for one half of the profits which might be realized by accepting any bona fide offer.</p> <p>Id. — Resale for Advance—-Agreement to Resell. •—If an actual resale of the farm for an advance is alleged in the complamt in an action to recover one half of the excess, such allegation is sufficiently sustained by proof of an agreement of the vendee to resell the farm for an advance, though no money was paid upon the contract of resale.</p> <p>Id.—Amount of Resale-—Variance.—If the complaint alleges a resale of the farm for a specified amount, and the proof shows a resale for two thousand dollars less than the amount alleged, with a reservation of standing timber of the value of two thousand dollars, the proof is at variance with the allegation of the complaint, and a finding that the amount of resale is as alleged is not sustained by the evidence.</p> <p>Id. — Rights of Vendor—Recovery for Timber Reserved — Pleading. — The vendor’s right to recover upon the contract for one half the excess for which the farm can be resold is not limited to the sum agreed to be paid, in case of a resale by the vendee with reservation of timber; but the vendor may recover, in addition to one half the excess in price paid for the farm, one half the market value of the timber reserved, or one half of the net sum for which it may be sold, at his option, though such recovery can only be justified by a complaint showing the facts as they really exist.</p>