Norby v. Pister

MUSSELL, J.

This is an action to cancel a contract of sale of real property in Orange County, all documents in connection therewith, and for a judgment in the sums paid by plaintiff on the purchase price and in caring for the property. Judgment was entered in favor of defendant and plaintiff appeals.

On May 5, 1947, plaintiff and defendants entered into a written escrow agreement in which plaintiff agreed to purchase and defendants agreed to sell the property described therein (approximately 2 acres) for the total purchase price of $6,500, $3,000 to be paid in cash and the balance by

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promissory note secured by trust deed. The escrow agreement contained the following provision: “Seller agrees to install and pay for pipe lines for irrigation and domestic purposes.” On May 19, 1947, defendants executed and delivered a grant deed to said property to plaintiff. Defendants received the sum of $3,000 through escrow and plaintiff executed and delivered to defendants his promissory note in the sum of $3,500, secured by a trust deed on the property. Shortly thereafter, defendants installed the irrigation pipe lines mentioned in the agreement. The domestic pipe lines were not installed, by reason of the failure of plaintiff to secure an agreement with the city of Orange, which was required before pipe lines could be connected with the city water system or domestic water furnished.

On or about December 5, 1949, plaintiff served on defendants a notice of rescission of the escrow agreement stating that defendants had failed to install and pay for the pipe lines for domestic purposes and that the consideration for the agreement had failed in whole or in part. A deed was therein tendered to defendants and demand was made for the return of moneys paid on the contract, plus $448.66 which plaintiff asserted he had spent in caring for and preserving the property.

Plaintiff contends (1) That there was a material failure of consideration because the defendants did not install and pay for the domestic pipe line and that there should be a rescission of the contract; and (2) That in the event it is determined that plaintiff is not entitled to a rescission of the contract, then the court should fix and determine the amount of damages to which plaintiff is entitled. These contentions are both without merit.