Ingram v. Glissman

DRAPER, J. pro tem.

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Defendant United Pacific Insurance Company demurred generally and specially to the amended complaint. The demurrer was sustained with leave to amend. The order sustaining the demurrer did not specify the grounds upon which the court based its ruling. Plaintiff declined to amend and, after notice, judgment of dismissal was entered. Plaintiff appeals.

Respondent was the surety upon a bond filed by defendant Glissman, who is not a party to this appeal, as a real estate and business opportunity broker. This bond was not filed until March 7, 1955, although Glissman had acted as such a broker for some time before that date. It appears that the bond remained in effect about 60 days.

Appellant alleges that he employed Glissman in November of 1954 to locate and negotiate for the purchase of a bar and restaurant by appellant. On December 2 a seller had been found. Glissman prepared and appellant executed escrow instructions which provided that the escrow was to be closed and the purchase completed “after the issuance to plaintiff of an on-sale general liquor license.” The signed instruc

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tions, with “several promissory notes in blank and various other documents” were delivered by appellant to a corporate escrow holder. “Plaintiff had, prior to . . . March 7, 1955, delivered the sum of Three thousand dollars ($3,000) to defendant Glissman ... as plaintiff’s agent.”

The liquor license was issued to appellant “in February, 1955.” It is then alleged that “on or about March 17, 1955” appellant instructed Glissman to deliver the $3,000 to the escrow holder and “to take the necessary steps to close the said escrow and complete the said purchase,” and that Glissman “disobeyed” this instruction “and failed” to close the escrow or complete the sale. It is also alleged that “at a time unknown to plaintiff,” but “subsequent to” an occurrence which apparently is the December 2 execution of the escrow instructions, Glissman “without authority” obtained from the escrow holder the “blank promissory notes” and “filled them in” for a “cumulative amount” of $11,500, $4,500 of which were made payable to the seller of the business and were delivered to the seller by Glissman “on or about March 10.” Appellant further alleges that “by reason of” Glissman’s failure to obey instructions to close the escrow, the seller rescinded the agreement of purchase and sale. Damages claimed are the $3,000 paid to Glissman, $4,000 in bills incurred by appellant while operating the bar pending completion of the sale, attorney’s fees, and $200 which appellant “was required” to pay to the seller “on account of” the promissory notes “filled in” and delivered by Glissman.