Southall v. Security Title Insurance & Guarantee Co.

WHITE, P. J.

Plaintiff has appealed from a judgment entered after a demurrer was sustained to his amended complaint upon the stated ground that his cause of action was barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure.

Plaintiff alleged that on December 3, 1947, he entered into a contract for the purchase of certain real property from

[322]

William and James P. Bianchini as heirs-at-law of one Eugenio Bianchini and also as cotrustees of a trust established by the will of Eugenio Bianchini, and secured approval of the purchase from all of the beneficiaries of the trust. Plaintiff and the Bianehinis thereupon executed and delivered escrow instructions to defendant title company, a copy of the instructions being annexed to the amended complaint, and it is alleged, “said defendant then and there covenanted and agreed to and with plaintiff for a valuable consideration that it, the said defendant, would carry out its obligations in accordance with the terms of said escrow agreement,” and the Bianehinis as trustees agreed to deliver to defendant “papers required to vest title as designated in said escrow instructions. ’ ’ Plaintiff further alleged ‘ ‘ That by the terms of said escrow defendant agreed that it would give plaintiff notice of facts within the knowledge of defendant which would prevent its compliance with said escrow instructions.”

The asserted breach of contract or duty by the defendant, as set forth in the amended complaint, is that on February 18, 1948, and on June 3, 1948, “plaintiff wrote defendant asking for information as to the status of said escrow but received no reply thereto from said defendant. That on July 8, 1948, defendant’s title search was completed and the title to the property described in said escrow was found by defendant to be in order and that defendant was then in a position to transfer title to plaintiff; however, the said William Bianchini and James P. Bianchini, cotrustees, had not delivered to defendant the papers required to vest title in plaintiff as agreed by them in said escrow.”

Further, it was alleged that ‘ ‘ although repeatedly requested by plaintiff, both by letter and telephone, defendant at no time informed plaintiff that the papers required from the cotrustees to vest title in plaintiff had not been delivered to defendant and at no time did defendant inform plaintiff that the title search was completed and that defendant was able to procure a standard form Owners Policy of Title Insurance upon the delivery to it of the papers required from the cotrustees to vest title in plaintiff. ...”