Kellogg v. Curry

WOOD (Parker), J.

Defendants appeal from judgment for plaintiffs in this action to quiet title to money.

On April 14, 1948, defendants, after having had conversations with Glenn K. Wise, a real estate broker who allegedly was agent for plaintiffs, agreed to purchase a house and lot for $6,250 and on that day they deposited $100 with the broker as part of the purchase price. On April 15, 1948, the record title to said property was in the name of the broker. On April 19, 1948, the defendants signed escrow instructions and entered into an escrow pertaining to said purchase of the property. The instructions stated, among other things, that defendants handed the escrow agent $1,200 and they would pay $5,000 on or before the close of escrow, all of which the agent was authorized to use and deliver provided on or before 30 days from date instruments have been recorded entitling the agent to secure usual standard form policy of title insurance issued by Title Insurance & Trust Company with liability of $6,250 on said property showing title vested in defendants. At the place on the printed form of instructions provided for the seller’s signature the broker wrote as follows: “Glenn K. Wise as trustee for Charles S. Kellogg and Ruth L. Kellogg. ’ ’ Plaintiffs did not sign the instructions.

The court found that on said April 14th and 19th Wise was acting for plaintiffs as their agent and trustee; that defendants paid $1,200 into escrow; that Wise was the owner of the escrow company and received the $1,200 as escrow agent for the plaintiffs and defendants; that “at all times after April 14, 1948, and for more than 30 days after April 19, 1948, the sellers [plaintiffs] were ready, willing and able to perform said agreement of sale”; that on April 25, 1948, the defendants notified the plaintiffs that they refused to perform under said agreement of sale and purchase and that thereafter they failed and refused to perform said agreement.

The defendant filed a cross-complaint against plaintiffs and Wise wherein they sought to rescind the agreement of sale upon the ground that plaintiffs and Wise made false and fraudulent representations concerning the property. It was

[858]

alleged therein, in part, that cross-complainants asked cross-defendants (1) whether the house was infested with termites, and (2) whether the garage was of sufficient size for cross-complainants ’ automobile; that cross-complainants stated to cross-defendants that the house and garage would have to be painted by the sellers in a workmanlike manner with first-class paint, and if it was not so painted the cross-complainants did not wish to buy the property. It was also alleged therein that cross-defendants “assured” cross-complainants that the house was free of termites, that the garage was large enough to accommodate cross-complainants’ automobile, and that the building would be painted in a workmanlike manner with good paint. It also was alleged therein that the house and garage were infested with termites; that the garage was about 2 feet too short to accommodate cross-complainants’ automobile; that the paint applied to the house and garage was of inferior quality and the workmen who applied it were unskilled.