HOLMAN, Administrator, v. VALLEJO, 19 Cal. 498

Cope, J. delivered the opinion of the Court Field, C. J. and Baldwin, J. concurring. This is an action to enforce a verbal contract for the sale of lands. A demurrer to the complaint was overruled, and the defendant failing to answer, the plaintiff took judgment by default. There is no doubt of the sufficiency of the complaint; but we are of opinion that the judgment is erroneous in two particulars: First, as to the balance adjudged to be due upon the contract; and second, in relation to the description of the property.

The judgment should have followed the complaint in both of these respects, and the departure is material and fatal. The defendant gets a less amount than is admitted to be due; and a conveyance is decreed by metes and bounds, instead of by the general description given in the complaint. On the latter point, the plaintiff insists that the lands are the same, and appeals to the evidence in the case to prove the correctness of his assertion.

This evidence was taken ex parte, and we think that upon so important a matter as the establishment of the actual boundaries of the property, the defendant has a right to be heard. The lands lie in two tracts, carved out of a larger quantity owned by him, and the greatest injustice might be done by maintaining the judgment in its present form. Upon the return of the cause, the plaintiff can either take judgment in accordance with the allegations of the complaint, or amend by inserting a more specific description of the property.

If a mistake has occurred in stating the amount due on the contract, an amendment may be made in that respect also. Judgment reversed and cause remanded for further proceedings.