Smissaert v. Chiodo

BRAY, J.

In this appeal by plaintiff from an adverse judgment in an action (1) for specific performance, or, in the alternative, damages, and (2) for declaratory relief, plaintiff raises many questions which, however, become moot if the trial court’s finding to the effect that there was no final contract between the parties is supported. This question, in turn, depends upon whether the purported contract shows on its face that it was not intended to be a final contract.

The Undisputed Facts

Defendant Chiodo Candy Company, a corporation, owns the property in question. To raise additional capital it decided to offer the real property for sale subject to a lease back

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to it. In May, 1955, defendant Louis Chiodo, president, director and general manager of the company, admittedly acting with authority, employed real estate brokers McLean and Korematsu to sell the property. The sale price, which included “equipment and chattels as per inventory to come,” was $550,000, all cash or “Cash and trade acceptable to Seller.” “No sale shall be made unless the Seller completes a satisfactory lease back . . . on terms and conditions acceptable to Seller.” The brokers called in a third broker, Jacobson, to help find a purchaser. Jaeobson brought the property to plaintiff’s attention. Plaintiff gave Jacobson a written offer dated June 16, 1955, in the form of a standard deposit receipt. In it Jacobson, “agent,” acknowledged receipt from plaintiff of $2,500 as a deposit on account of the purchase price of $250,000 for the real property alone, balance to be paid within 60 days from date of acceptance by seller. “This offer is subject to a

net net net

lease for a period of twenty-five (25) years by sellers at a

net net

rent of $27,500.00 per annum ...” (Emphasis added.) The lease was to be secured by a chattel mortgage on personal property used in the operation of the plant. “This offer is subject to satisfactory financing to be obtained by the purchaser at his own cost, effort and expense.” It was stipulated that Jacobson was plaintiff’s agent for the purpose of submitting the offer. Plaintiff gave Jacobson a $2,500 check payable to California Pacific Title Company as a deposit. Jacobson retained the check and still retains it. He testified that it is customary on sales of industrial property for the broker to retain the deposit check until the offer is accepted. It is then placed in escrow with the seller’s escrow instructions.