Seymour v. Shaeffer

WILSON, J.

This is an action to enforce specific performance of a purported agreement of sale of real property. Judgment was entered in favor of defendants and plaintiffs have appealed.

After preliminary negotiations concerning the price to be paid for the property, respondents executed a receipt to appellant David Seymour reading as follows: “Reed, of David Seymour the sum of ($1000.00) check payable to Union Bank 8th & Hill St as a deposit on the property located at 737 S. Olive known as the State Hotel together with furniture & furnishings therein The total purchase price is $128,750 One Hundred & Twenty Eight Thousand Seven Hundred & fifty Dollars The sellers Homer Shaffer & Edith Shaffer agree to take back a first Trust Deed of $80,-000 Eighty Thousand Dollars payable $600.00 or more per month including 5% till paid The Sellers agree to furnish the buyer with an O.P.A. rental statement and Termite report, inventory of furniture & linens for the Buyers approval!. Escrow to close on January 4th 1946. (Signed) O. H. Shaeffer Edith Shaeffer.”

At the time of the execution of the receipt David Seymour handed to respondent Ohmer H. Shaeffer a cheek for $1,000 payable to Union Bank & Trust Company. On the back of the check was the following: “Deposit on State Hotel 737 So. Olive St. subject to terms and conditions of contract Oct. 29, 1945 & signed between David Seymour & Homer & Edith Shaeffer.”

On November 7, 1945, appellant David Seymour went to the Union Bank & Trust Company where escrow instructions were prepared and signed by him. The instructions recited that “I will hand you $48,750.00 and any additional funds and documents” required for the compliance by said appellant with the instructions. The escrow holder was authorized to use the cash and documents provided on or before January 4, 1946, instruments were filed entitling the escrow holder to procure a policy of title insurance with

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the title company’s liability of $128,750 on the property, showing title vested in David Seymour and Charlotte D. Seymour, his wife, as joint tenants, subject to a mortgage securing a note for $80,000 executed by appellants in favor of respondents. The escrow holder was directed to hold for buyer a termite report by a licensed termite inspector, showing property free and clear of termites, dry rot, fungus, or other wood-destroying pests or insects. The escrow instructions were not signed by appellant Charlotte D. Seymour, nor were they signed or accepted by respondents. In fact the instructions were prepared without their knowledge, consent or authority.