Nelson v. F. & A. Levy & Co.

This is an appeal from an order of the court sustaining the defendant’s demurrer to plaintiff’s third amended complaint, and from a judgment based thereon, the plaintiff having declined to further amend.

The action is for damages for the alleged breach of one of the provisions of a contract for the sale from the defendant to the plaintiff of certain lots in a larger tract of land bounded by Day, Diamond, Thirtieth, and Castro streets in the city and county of San Francisco. The contract of sale contained the following provision: “The party of the first part agrees to do street work on Day Street on or before November 1st, 1909.” It is this clause in the contract which the plaintiff avers that the defendant has failed to perform, and out of its alleged failure this cause of action arises.

We think the demurrer to the plaintiff’s third amended complaint was properly sustained. The clause in the contract counted upon is too hopelessly uncertain to base an actionable breach upon. It could only have been made definite by averments showing that the parties to the contract at the time of its execution had by some sort of an agreement arrived at an understanding as to just what amount…