SMITH, J. —
Appeal from a judgment for the defendants, and from an order denying the plaintiff's motion for a new trial. The suit is brought for specific performance of a contract for the sale of real estate alleged to have been made by the defendants, or for damages, in case performance cannot be had.
The contract sued on is signed by the defendant Lewis only; but it is alleged that he was authorized in writing by the other defendants to sign it on their behalf. It is in the words and figures following:
"Los Angeles, Cal., Feb. 11-05.
"Received from Luisa A. Gregg the sum of fifty dollars, being a deposit on lot one in blk. 28 Crenshaw's Arlington Hts. tract $1000 cash with unlimited certificate of title and all street work in front of said lot to be done and paid for by first party within one year. The first party also agrees to conduct an adequate supply of water to said lot within a year.
"The first party also agrees to lay a temporary pipe to said lot conducting an adequate supply of water for domestic purposes within one week from completion of sale.
"First party agrees to furnish above title and deed to said lot within ten days from date hereof.
"FLOYD F. LEWIS."
At the time of the making of this document the legal title to the land was vested in Crenshaw and the equitable title in Carey, under a contract of sale subject to certain building restrictions and other conditions; and it is found that Lewis was not authorized in writing, or otherwise, by the other defendants to execute the instrument sued on. It appears from the evidence, however, that upon application to Carey by the plaintiff's attorney on her behalf, he was informed by Carey that Lewis was authorized by him to sell the lot, and the attorney was directed "to see defendant Lewis in the matter." This, it is claimed by the appellant, under authorities cited, was a ratification of Lewis' agency by Carey of such a character as to estop him from denying it, and this contention, we think, must be sustained. (Civ. Code, secs. 2300, 2317; Code Civ. Proc., sec. 1962, subd. 3; Donnelly v. San Francisco Bridge Co., 117 Cal. 417, [49 P. 559]; Scott v. Glenn, 87 Cal. 221, [25 P. 405]; S.C., 98 Cal. 170, [32 P. 983].)
Afterward, the plaintiff applied to Lewis for a deed and was offered a deed executed by Crenshaw, containing the building restrictions and other restrictions provided for in his contract with Carey, and without any provisions as to the street work and water piping referred to in the contract sued on. This she refused to receive and demanded a deed without such restrictions and in accordance with her contract, which was refused by the defendants Lewis and Carey. Afterward, at the close of the evidence, the plaintiff offered to accept a deed with the building restrictions as first offered by defendants.
The defendants Lewis and Carey, not being able to make the deed called for by their contract, it is clear that the plaintiff cannot have specific performance of the contract, or at least complete specific performance. Nor, in view of her previous definite refusal to accept the deed offered by the defendants and the time elapsing before her offer to accept such a deed, are we prepared to say that the court below was not justified in refusing to require the defendants to make the deed the plaintiff was ready to accept.
It seems clear, however, that as to the defendants Carey and Lewis, the plaintiff has made a good case for damages, the measure of which in the present case should be the money paid on the contract (Civ. Code, sec. 3306). But, as it appears from the evidence that this money was once tendered, the judgment should be modified by adjudging to the plaintiff the recovery of $50 from the defendants Carey and Lewis, but without interest.
The order denying the plaintiff's motion for a new trial is affirmed. The judgment appealed from is reversed and the cause remanded, with directions to the lower court to modify the same as above indicated; and the judgment thus modified shall stand affirmed.
Gray, P. J., and Allen, J., concurred.
A petition for a rehearing of this cause was denied by the district court of appeal on November 14, 1906.
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