Auslen v. Johnson

VAN DYKE, P. J.

This is an action for specific performance of an alleged contract to convey real property. One Armstrong, the assignor of appellant Auslen, had for several years been engaged in business with Elwood Chris Johnson, hereinafter called respondent, in the subdivision and sale of real property near Lake Tahoe. On October 1, 1949, their association was terminated and respondent agreed with Armstrong that with regard to certain real property which respondent still owned he would give to Armstrong what was called “a right of first refusal.” On August 1, 1950, respondent wrote Armstrong, saying he had received an offer for some of the real property involved in his agreement with Armstrong and as a result of a discussion which thereafter occurred respondent gave to Armstrong a written option for 30 days to purchase certain described property, He received $250 in consideration of this option. The 30 days elapsed and on December 14, 1950, Armstrong paid Johnson an additional sum of $300 and obtained a written “extension” of the original option agreement for a period stated as lasting until a preliminary title report which Armstrong had already ordered should be completed by a title company. On December 19th a third sum of $200 was given to Johnson by Armstrong. The preliminary title report was received by Armstrong December 22, 1950, but he did not then exercise his option. However, on December 30th Armstrong paid a further sum of $200 to respondent who then orally agreed with Armstrong to “extend” the option to February 1, 1951. On January 26th Armstrong paid respondent a further sum of $100. Concerning this last sum respondent testified that he gave no extension on the option beyond the date of February 1st and

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Armstrong testified that the option was for that consideration extended for a reasonable period of time. On March 15th following Armstrong advised respondent he would be unable to exercise the option and offered to release respondent from the agreement giving him a “right of first refusal” for the sum of $10,000. On April 2, 1951, Armstrong assigned his rights under the option agreement to appellant and appellant deposited with the title company who had made the preliminary report a sum more than sufficient to meet the purchase price named in the option agreement. Appellant demanded conveyance and upon its being refused brought this action. There is conflict in the testimony concerning the foregoing, but under the settled rule we must disregard it.