Kline v. Rogerson

McCOMB, J.

Plaintiff appeals from a judgment in favor of defendant after trial before the court without a jury in an action to recover upon a cheek signed by defendant upon which he had stopped payment.

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The essential facts are these:

In September of 1945, defendant met Thomas J. Quigley, a real estate broker. Thereafter the broker displayed to defendant plaintiffs ranch which was for sale. On October 18, 1945, defendant executed a cheek in favor of Thomas J. Quigley in the sum of $10,000 which was handed to one of Mr. Quigley’s agents, Mrs. Gray. The following day plaintiff, defendant, Mr. Quigley, and Mrs. Gray returned to plaintiff’s ranch where a discussion relative to the property ensued which resulted in plaintiff and defendant executing a deposit receipt.

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Thereafter plaintiff, defendant, and Mr. Quigley went to a branch of the Bank of America and opened an escrow. The deposit receipt and the check above referred to, endorsed by Mr. Quigley to the escrow holder, which endorsement contained the escrow number, were handed to the escrow

[160]

clerk. A preliminary sheet for the use of the bank in preparing escrow instructions was filled in. Written escrow instructions were to be drawn by the escrow clerk and later signed by the parties. Defendant agreed that the check which he had given to Mr. Quigley should be placed in the escrow. Thereafter plaintiff and his wife signed escrow instructions prepared by the bank and delivered to the escrow holder a deed, a statement of identity and a fire insurance policy. Defendant did not sign the escrow instructions and on October 23, 1945, ordered payment stopped on the check which he had given to Mr. Quigley. On October 24, 1945, Mr. Gold, attorney for defendant, asked the escrow holder to send him a copy of the conditions and restrictions “subject to the approval of the buyer” and a bill of sale for certain garden tools, and stated that, “the transaction was contingent on payments on the second for $2,000 a year instead of $5,000” a year, to be “subject to the approval of the buyer.”