Norris v. San Mateo County Title Co.

TRAYNOR, J.

Plaintiffs brought this action against the San Mateo County Title Company and defendants Ribarsky to recover a $2,000 down payment made by the Ribarskys under a contract for the purchase of real property from plain

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tiffs Norris. The down payment was paid to plaintiffs Keeler and Chance, the Norrises’ agents in negotiating the sale of the property. The agents deposited the down payment with the escrow holder, San Mateo County Title Company. The trial court entered summary judgment for plaintiffs based on the affidavit of plaintiff Chance and the judgment roll of a previous action between the parties. It was stipulated that the trial court could consider the judgment roll in ruling upon the motion for summary judgment. Defendants Ribarsky have appealed.

The affidavit in support of the motion for summary judgment avers the following facts: Defendants Ribarsky signed a deposit receipt in which they agreed to purchase the property for $20,000. They paid $2,000 down and agreed to pay the balance within 45 days. Plaintiffs Norris accepted the contract and agreed to pay plaintiffs Keeler and Chance a 5 per cent commission, or in the event of default, one half the down payment. The deposit receipt provided that “In case said purchaser shall fail to pay the remainder of said purchase price or complete said purchase as herein provided, the amounts paid hereon shall, at the option of the Seller be retained as liquidated damages.” Plaintiff Chance deposited the down payment with the San Mateo County Title Company, pursuant to authorization of defendants Ribarsky, together with a deed “duly executed by plaintiffs Norris and escrow instructions in conformity with the aforesaid deposit receipt duly executed by plaintiffs Norris.” Plaintiffs Norris complied with all the terms and conditions of the deposit receipt, but defendants Ribarsky refused to make any further payment under the contract. The affidavit concludes “That said sum of Two-Thousand Dollars ($2,000.00) remains and is on deposit with defendant San Mateo County Title Company ; that plaintiffs Norris are entitled to the whole of said sum, . . . and that plaintiffs Keeler and Chance . . . are entitled to be paid one-half (%) of said sum.”

Defendant Emil J. Ribarsky filed an affidavit in opposition to the motion for summary judgment averring the following facts: Defendants were induced to make the down payment under the terms of the deposit receipt by the promise of plaintiffs Keeler and Chance to sell property owned by defendants. By this sale of their own property, defendants intended to secure the funds necessary to perform their contract with the Norrises. Plaintiffs Keeler and Chance did not, however,