Higgins

This is an appeal by Beverly Higgins, plaintiff, trustee of the Matthew Trust, from a judgment on the pleadings after her motion to amend her pleadings on the day of trial was denied by the trial court.

Plaintiff commenced the litigation on or about December 1, 1978, by filing a one-count complaint for specific performance against Gordon P. Del Faro and ten Does. The complaint alleged that plaintiff agreed to buy property owned by defendants pursuant to an agreement that was attached to the complaint as exhibit A and made a part thereof by reference. The total consideration was $297,000, of which $84,000 was to be paid in cash and $213,000 by a promissory note, secured by a deed of trust on the property. The escrow instructions attached as exhibit A were signed only by plaintiff.

Defendant Del Faro filed a demurrer to the complaint, stating that the escrow agreement (exhibit A) was not the agreement between the parties and therefore no cause of action was stated. This general demurrer to the complaint was overruled by the court.

On January 26, 1979, respondent, Van R. Dental Products, Inc. (Van R. Dental) filed a complaint against Del Faro et al., for specific…