Thayer v. Magill

SCOVEL, J.,

pro

tem.

This in an action for rescission of a contract of sale of a twenty-acre orange grove situated in San Bernardino County. In their fifth amended complaint plaintiffs allege the due execution of the contract wherein defendants Magill agreed to sell and plaintiffs agreed to buy twenty acres of oranges therein described, together with all pots and heating equipment on said land and 167 shares of water stock for the total purchase price of $55,000, payable $1,000 in cash, $7,200 represented by a house and lot with the furnishings therein owned by plaintiffs and the balance payable out of moneys derived from the sale of fruit raised on said land. Such fruit was to be sold through a packing house and the net proceeds received therefrom paid to defendant, Arthur H. Magill, as trustee, he to disburse the same as follows: First, to pay all legal taxes and assessments against said grove; second, to pay all moneys which the vendors should have expended in earing for said grove; third, to pay vendees all moneys expended by them in the care of said grove, and, fourth, the balance to be applied upon the unpaid purchase price. It is alleged that the vendees thereupon entered into possession of said property and duly performed all the conditions of said contract on their part to be performed, and thereafter, to and including September 1, 1932, expended in the care and operation of said grove the sum of $5,746.89. That during said period of time said trustee received the sum of $6,136.03 from the proceeds of the sale of fruit grown on said grove and paid to the vendors $467.65 for taxes and expenses of the grove between November 1, 1930, and April 1, 1931, leaving a balance of $5,668.38 “applicable to the reimbursement of plaintiffs for their expenditures in the care and operation of said grove”, but that said trustee

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only paid to plaintiffs the sum of $4,317.70, leaving the sum of $1350.68 “applicable to the reimbursement of plaintiffs for their expenses in the care and operation. of said grove after payment to said vendors of all sums expended by them” under the provisions numbered first and second above set forth. Demand by plaintiffs upon said defendants for payment of said sum and their refusal is alleged.

It is further alleged that in said contract it was agreed that the vendors would upon request place in escrow with a bank or trust company agreeable to the parties a deed for said property with the vendors as grantors and the vendees as grantees, to be delivered to the latter when the property had been fully paid for, and that in August, 1932, vendees made such demand but that vendors refused to comply. The complaint further alleges that during the month of May, 1932, “said vendors voluntarily placed it out of their power to perform their contract in respect to said deed and contract by executing and delivering to defendants Mehl a deed to said grove with themselves as grantors by which the legal title to said grove was conveyed to said defendants Mehl, in which deed it was stated that it was given subject to said contract of July 29, 1930”.