Cooper v. Cereghino

FINCH, P. J. This is an action for specific performance of a contract for the sale of land. Judgment was entered in favor of the plaintiff and the defendant has appealed. A careful examination of the record shows that there is no allegation, proof or finding on the question of the adequacy of the consideration which the plaintiff agreed to pay for the property. The judgment, therefore, must be reversed. (Civ. Code, sec. 3391; Salisbury v. Yawger, 184 Cal. 783, 795 [195 Pac. 682] ; Laguna Land & Water Co. v. Greenwood, 92 Cal. App. 570 [268 Pac. 699]; Boulenger v. Morrison, 88 Cal. App. 664 [264 Pac. 256]; Walker v. Clark, 80 Cal. App. 520 [252 Pac. 334] ; 23 Cal. Jur. 438.) “The accepted rule in this state is that the question of the inadequacy of the consideration relates to the time of the formation of the contract, that is, at the time the contract was made.” (O’Connell v. Lampe, 206 Cal. 282 [274 Pac. 336].) *291 The court erroneously admitted in evidence a written modification of the contract sought to be enforced, but which was not alleged. The decree was based on the contract as so modified. The judgment is reversed and the trial court is directed to grant leave to the plaintiff to amend her complaint. Thompson (R L.), J., and Plummer, J., concurred.