Angus v. London

SHINN, P. J.

John Angus and others, herein referred to as plaintiffs, brought an action against Howard M. London for the recovery of $4,500 damages for the alleged breach of a contract to buy two vacant residential lots. The amended complaint alleged an agreement in the form of escrow instructions to a bank. Defendant answered; denied that he had entered into a written agreement of purchase; denied that the copy of the escrow instructions pleaded had been executed by him and alleged that plaintiffs had fraudulently misrepresented the location of one of the lots. An escrow was opened with a bank, $2,500 was deposited by defendant on account of the purchase of the lots for $13,500, and the bank, after the deal fell through, brought an action in inter-pleader and deposited in court $2,314.50, the amount remaining in its hands after the deduction of certain charges and expenses. The respective defendants answered and laid claim to the money. In the interpleader action London also filed

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a cross-complaint for rescission upon the ground of fraud. The two actions were consolidated and were tried on ■ the same evidence. The trial resulted in a judgment of nonsuit in plaintiffs’ action. No further evidence was received and the issues in the interpleader action were decided in London’s favor, findings and conclusions were filed and London was awarded the money on deposit with the court. Plaintiffs appeal.

The basis of the court’s determination that no agreement of sale was entered into was that the sellers’ escrow instructions and those of the buyer differed in material respects. The instructions of both parties were prepared in duplicate by the bank. They were printed on both sides of a single sheet of paper. The buyer’s instructions, as prepared by the bank, were complete as to price, terms and conditions. The sellers signed both copies of their instructions and the bank gave one copy to Henry London, a realty broker, who was defendant’s father and was acting as broker in the transaction. The sellers’ instructions called for payment to Henry London at close of escrow of a commission of $675 from funds due plaintiffs. Henry took the instructions to Howard and the latter made an insertion in handwriting reading as follows: “The seller to furnish a policy of title insurance at their cost.” The instructions read, in part, “A set of Plans and Blueprints for a building for this property as previously submitted by the Seller and approved by the Buyer is to be given to the Buyer (consideration for same included in the above sale price) fully paid for. ...” Howard altered this writing in ink so that it called for plans and blueprints for two buildings instead of one and signed the instructions. Henry returned the altered instructions to the bank where he was told they would not be accepted and acted upon without the approval of the sellers. Henry then inked out the writing which Howard had inserted, including the word “two” before the word “buildings.” The escrow officer advised plaintiff John Angus as to what had taken place with respect to the buyer’s copy of the instructions. However, he did not advise Howard London that the changes made by the latter had been deleted by Henry. Howard later delivered his check for $11,000 to Henry and it was deposited in the escrow. The instructions were interpreted by the escrow officer as calling for the delivery of the plans and blueprints through the escrow, and he deemed it his duty to see that they were properly delivered. He prepared an additional instruction