This is an appeal from a judgment entered on an order sustaining respondent's demurrer without leave to amend to appellant's third amended complaint.
Four different complaints were filed by appellant. The original complaint filed on August 26, 1953, contained two counts, one to quiet title and one for specific performance of an oral contract to convey real property. Respondent Margaret Coolidge was sued individually and as executrix of the estate of her father, David Kelly, deceased. A demurrer to this complaint having been sustained, appellant filed the first amended complaint which consisted of one count for specific performance. Following the sustaining of a demurrer to this complaint, the second amended complaint was filed. It contained three counts, one for specific performance; one for damages, actual and punitive, and one for money had and received. A demurrer to this complaint was also sustained with leave to amend and a motion to strike granted.
The third amended complaint was for declaratory relief seeking a declaration of appellant's rights and duties in respect to certain real property therein described. It was then alleged "That an actual controversy has arisen between plaintiff and said defendant, Margaret W. Coolidge, relating to the legal rights and duties of said parties, to wit, that plaintiff contends that plaintiff is entitled to the execution and delivery to plaintiff by said defendant, Margaret W. Coolidge, of a good and sufficient grant deed, granting and conveying the aforesaid real property in fee simple absolute to plaintiff, or, in the alternative, to the recovery from said defendant of the sum of $3,209.68, being the amount heretofore paid by plaintiff to said defendant pursuant to the terms of an oral contract wherein and whereby the said defendant agreed to sell and convey the said real property in fee simple to plaintiff; that said defendant, Margaret W. Coolidge, denies all and singular the aforesaid claims of plaintiff."
Respondent demurred to the third amended complaint on the grounds that (1) it did not state a cause of action; (2) that no cause of action was stated inasmuch as any claim for relief was barred by the provisions of section 339, subdivision 1, Code of Civil Procedure; (2) that it was uncertain in several particulars, that it was ambiguous and unintelligible.
It may be observed that this complaint is certainly subject to numerous defects raised by the special demurrer, but if the special demurrer had been sustained, leave to amend should
Appellant's first contention, that the trial court committed error in sustaining the demurrer to the second amended complaint, may be disposed of briefly.
It is next contended that the third amended complaint stated a good cause of action for declaratory relief. Appellant stated that it has been held that a complaint for declaratory relief is sufficient where it shows the existence of an actual controversy (Tolle v. Struve, 124 Cal.App. 263 [12 P.2d 61]; Northwest Cas. Co. v. Legg, 91 Cal.App.2d 19 [204 P.2d 106]; Dowd v. Glenn, 54 Cal.App.2d 748 [129 P.2d 964]), and that plaintiff need not allege facts showing that the adverse party has breached the terms of an agreement. Pacific States Corp. v. Pan American Bank, 213 Cal. 58 [1 P.2d 4, 981].)
While it is true that the third amended complaint states that a controversy exists in relation to the rights and duties of the parties under an oral contract to convey real property, and therefore would appear to state a case for declaratory
It is true that the action of the trial court in denying declaratory relief by sustaining a general demurrer to the complaint rather than by deciding the matter after answer has been filed has been criticized (Moss v. Moss, 20 Cal.2d 640 [128 P.2d 526, 141 A.L.R. 1422]), still such error has not been considered prejudicial unless an abuse of discretion is affirmatively shown on appeal. (15 Cal.Jur.2d 166, § 37; Lord v. Garland, 27 Cal.2d 840 [168 P.2d 5].)
In the instant case the alleged controversy consists of plaintiff's contention that she is entitled to the execution of a deed to the property involved in the oral contract, in other words, specific performance of said contract, or in the alternative to the recovery of the money already paid pursuant to the terms of the contract. This was the fourth complaint filed in this action. The two prior complaints had demanded specific performance, and the second amended complaint sought specific performance, compensatory damages, and punitive damages for fraud. On the fourth attempt, appellant has switched to the theory of declaratory relief, but the complaint still discloses that she is seeking specific performance of an oral contract to convey real property, or in the alternative, restitution of the money paid thereunder. Appellant is therefore attempting to state the same causes of action set forth in the prior complaints. The court could properly conclude, therefore, that appellants had a sufficient remedy in a suit for specific performance or damages.
It is necessary to decide, therefore, whether a cause of action is stated in either specific performance or damages for money paid out pursuant to the oral contract. Respondent contends that these causes of action are barred by the Statute of Limitations, and that the second amended complaint shows on its face that such is the fact. Appellant argues
The second amended complaint alleged that respondent Margaret Coolidge, David Kelly and his wife, Inez, were on April 1, 1946, the owners in fee simple in joint tenancy of certain real property thereafter described; that the Kellys by themselves and through their duly authorized agent, respondent Margaret Coolidge, orally agreed to sell and convey to appellant said property for the sum of $8,500, of which $1,000 was to be paid upon the execution of the agreement and the balance thereafter at the rate of $65 per month. It was alleged that the agreement was just, reasonable and equitable, and the consideration just and adequate.
The complaint then relates that Inez Kelly died on January 5, 1949, and her interest vested in David Kelly and respondent; that thereafter David Kelly and respondent became record owners of said property as tenants in common; that later, by virtue of the will of David Kelly, respondent became record owner in fee simple absolute of the said property which was distributed to her on April 20, 1953. It was further alleged that respondent and the Kellys at the time of the execution of the agreement represented that the terms and conditions thereof would be put in writing; that pursuant to the oral agreement appellant paid the sum of $1,000 and was let into possession of the property. Thereafter she paid $65 per month thereon until September 1948.
Paragraph VIII of the complaint sets forth sums expended by appellant for taxes, repairs and improvements up till September 1948. Paragraph XI alleges that appellant remained in possession until September 12, 1952.
Paragraphs XII and XIII read as follows:
"That plaintiff ceased making the said payments of $65.00 per month during the said month of September 1948 for the reason that said defendant Margaret W. Coolidge then and there stated, declared and represented to plaintiff that by the fact the aforesaid contract agreement was not in writing the same was invalid and unenforceable and that under the law plaintiff had not acquired in writing title or interest in or to the said real property, or any part thereof, and that it would be necessary for plaintiff to remove from and vacate the said real property; the said defendant Margaret
"That during the entire period between the month of September 1948 and the day last aforesaid, to wit, the 12th day of September, 1952, the said defendant Margaret W. Coolidge repeatedly and continuously stated, declared and reiterated to plaintiff that plaintiff should say nothing concerning the premises to the father or the mother of said defendant Margaret W. Coolidge, and that when the said father and mother of said defendant had died, she, the said Margaret W. Coolidge, would settle and adjust the matter of the purchase of the said real property and the whole thereof, by the plaintiff to the complete satisfaction of said plaintiff; and that during all of said period of time the said defendant Margaret W. Coolidge urged and requested plaintiff to pay all of the taxes upon the said real property; and that plaintiff, solely in reliance upon the said promises and assurances of said defendant, and not otherwise, paid all of the taxes on the said real property and the whole thereof during all of the period last aforesaid."
Neither the second amended complaint nor the third, state a cause of action for specific performance nor can they be amended to state one, since appellant has disclosed that she moved out of possession of the property in 1952.
The only question remaining, then, is whether there is a cause of action stated in the third amended complaint for restitution of the money paid by appellant under the oral contract. Respondent contends that the second amended complaint clearly discloses that such cause of action is barred by the statute of limitations (Code Civ. Proc., § 339, subd. 1), since the oral contract to convey was repudiated by respondent in September 1948, and this repudiation was acknowledged by appellant, for at that time she ceased making the monthly payments under the contract. If respondent is correct in her interpretation that there was an absolute repudiation of the contract at that time, then the statute would commence to run from that time on both the breach and damages for the breach, and the action would be clearly barred unless respondent is estopped to plead the statute.
However, Paragraphs XII and XIII of the complaint while somewhat uncertain and ambiguous show a course of
If we view the pleadings as showing an absolute repudiation and breach of the contract in September 1948 which would start the statute running against appellant's claim to a repayment of the purchase price, the same pleadings which disclose the breach also show that appellant was lulled into delaying the prosecution of her claim by a continuous course of misleading conduct on the part of respondent.
We hold that the court was in error in sustaining the demurrer without leave to amend, inasmuch as appellant may be able to state a good cause of action for repayment of the money. It is suggested that when another amendment is made, appellant will cure the ambiguities and uncertainties which are so prevalent in all the earlier pleadings.
Nourse, P.J., and Dooling, J., concurred.
Respondent's petition for a hearing by the Supreme Court was denied September 15, 1955.