Bolln v. Petrocchi

[590]

MUSSELL, J.

This is an action for ejectment. In October, 1947, plaintiff and defendants entered into a contract for the sale and purchase of a house and lot in the city of Newport Beach. Defendants agreed to pay to plaintiff the sum of $10,500 for the property, as follows: $1,500 on the signing of the escrow instructions, $1,500 to be paid into escrow on or before October 30th and the balance of $7,500 to be paid into escrow on December 8, 1947. It was understood that defendants were to obtain the final payment of $7,500 from another escrow, to be closed on December 8th. The agreement provided that plaintiff was to have the right to the sum of $2,500 from the escrow on or before October 30th and defendants were to have possession of the property on November 20th, with the exception of a garage on the premises, which plaintiff would use and occupy until December 20th. The parties signed written escrow instructions embodying the terms of the agreement, except the provision thereof relative to the occupancy of the garage. The general terms of the escrow included the following provisions:

“Time is of the essence of these instructions. If this escrow is not in condition to close by December 8, 1947, any party who then shall have fully complied with his instructions may, in writing, demand the return of his money and/or property; btft if none have complied, no demand for return thereof shall be recognized until five days after the escrow holder shall have mailed copies of such demand to all other parties at their respective addressess shown in the escrow instructions. If no such demand is made, close this escrow as soon as possible.”

Defendants paid $3,000 into the escrow, $2,500 of which was thereafter withdrawn therefrom by plaintiff on October 31, 1947. The evidence discloses the fact that the defendants were unable to obtain the final payment of $7,500 on December 8, 1947, from the other escrow as contemplated. However, they did obtain the money on December 30th and caused it to be deposited in the escrow to complete the payment of the purchase price.

On December 11th, the plaintiff instructed the escrow company to withhold further action on the ground that the defendants had not fulfilled the terms of the contract, but the escrow company failed to notify the defendants of this instruction. On the same date, plaintiff requested permission from the defendants to use and retain the possession of the garage located on the real property until January 1, 1948. This request was granted and the possession of the garage