Durkee v. Cota , 74 Cal. 313 ( 1887 )

Hayne, C.

The complaint sets out a contract in hsec verba for the conveyance of land. This contract contains the following covenant: “We also agree to sell a full and abundant water right for all of the above land.” In pursuance of this contract, the defendants conveyed the land, and also a water right, which the plaintiff alleges was not sufficient, and which he says he was induced to accept by the fraudulent misrepresentations of defendants.- A demurrer was sustained on the ground that the covenant as to the water right was too uncertain to be enforced, and final judgment was given against plaintiff on demurrer.

Whether or not the contract is so uncertain that it could not be interpreted by the aid of surrounding circumstances, to be proved by evidence, need not be determined. It is evident that the covenant is ambiguous. For what purpose was the water right to be “ full and abundant”?—for any particular purpose, or for all purposes which the fancy of the plaintiff might suggest? The pleading does not enlighten us on this point. It simply sets out a copy of the contract, leaving it to speak for itself. It is obvious that the pleading must partake of whatever ambiguity there is in the contract. It is perfectly proper to set out a contract in haee verba. But in such case, if the contract is uncertain, the pleader must put some definite construction on it by averment. As remarked in Joseph v. Holt, 37 Cal. 253: "The instrument which is thus adopted as a part of the complaint must show upon its face, in direct terms, and not by implication, all the facts which the pleader would have to allege under the former mode of pleading by averment.”

The appellant’s counsel urges in his brief that evidence would be admissible in aid of the contract. Possibly it would, and possibly also it might remove the uncertainty. But it would not cure the defects in the pleading.

The ambiguity was sufficiently pointed out by the demurrer; and we think the judgment should be affirmed.

Foote, C., and Belcher, 0. 0., concurred.

The Court.—For the reasons given in the foregoing opinion, the judgment is affirmed.