Bartone v. Taylor-Benson-Jones Co., Ltd.

[80]

McCOMB, J.

Defendants appeal from a judgment granting plaintiffs specific performance of a contract for the purchase and sale of real property.

Facts:

Plaintiffs through their broker Benjamin Radin submitted to defendants a written offer dated February 14, 1952, to purchase a lot situated in the city of Inglewood, California. In this offer it was stated “Buyer will pay all cash. Present owner to retain the oil rights.”

When this offer was made to defendants, defendants made several insertions in it before accepting the same, among which were that “the oil and gas lease on said premises” was reserved, and “surface rights only included in sale.” The sentence reading “Present owner to retain oil rights,” was changed to read “Present owners to retain the oil, gas and mineral rights under said premises and are reserved from sale.” After the changes were made the offer was signed by defendants.

The following day plaintiffs caused written escrow instructions to be prepared by the Regent Escrow Company, Inc., which instructions were signed by plaintiffs. These instructions so far as they relate to the present case contained these provisions:

“It is understood and agreed that there is an oil and gas lease on the property on which there is no right of entry and on which there is a 500 ft. relinquishment by the lessee and that the royalties on this lease shall remain the property of the sellers.”

In addition the escrow instructions provided for the sale of fee title to the real property and not for the surface rights only. A copy of the proposed escrow instructions were sent tu defendants but were never executed. On February 20, 1952, defendants wrote a letter to the broker, enclosing a copy for plaintiffs, in which defendants stated that they rescinded their contract for the reason that it had never been accepted and that there had been no meeting of the minds on the contract.

The trial court gave judgment in favor of plaintiffs.

Question:

Do the foregoing facts sustain a finding that there was a contract between the parties f