Boshes v. Miller

SHINN, P. J.

This is an appeal by defendants Miller and Fisher from a judgment granting plaintiff damages for failure to convey real property to him. Plaintiff, a contractor, and defendants entered into a joint venture the terms of which were expressed in a writing of August 4, 1947. They were to acquire lots, build houses and sell them, sharing the profits and losses one-third to plaintiff and two-thirds to defendants. Title was to be placed in plaintiff, he was to obtain construction loans upon notes and trust deeds of himself and wife, following which title was to be placed in the names of defendants, who were to provide any additional financing for the purchase of lots and for the construction. Lots 37, 47 and 100 were purchased, loans were obtained and houses built. Plaintiff, however, contributed some $9,600 to the venture although not required by the agreement to contribute anything but his services and the benefits of any trade discounts he might obtain. In May, 1948, the houses being unsold, the joint venture was dissolved. An accounting was had; it was determined that defendants would take Lots 37 and 47 and plaintiff Lot 100, paying defendants there

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for $9,362.52. Plaintiff was given until September 26, 1948, to pay the money. An escrow was arranged with a bank under which September 30th was fixed as the time the money should be paid and defendants were given the right to terminate the escrow if it were not paid. Plaintiff, with knowledge of defendants, made alterations in the house on Lot 100 at an expense of $1,380.58 and he also paid a bill for electrical work on the three houses, $374.84 of which was on defendants ’ houses, which latter amount they agreed to pay him by deducting it from the $9,362.52. The crucial question in the case was whether plaintiff was prevented or dissuaded from depositing his money in escrow on September 30th by the conduct of the defendants actuated by willfullness and bad faith.

Among the six causes of action of the complaint was one for specific performance or for damages if specific performance could not be had. It was admitted that plaintiff did not deposit his money in the escrow but alleged that he was ready, able and willing to do so and was dissuaded therefrom by certain conduct of the defendants, because of which, it was pleaded, defendants should be held estopped to claim nonperformance on his part.