Cook v. Snyder

DORAN, J.

This is an action for the recovery of the purchase price of real property on account of the alleged failure of the seller to convey the property. Pursuant to an agreement between them, respondent and his codefendant herein, P. N. Snyder, purchased twelve lots in a certain subdivision, to be sold later for the benefit of both parties. The-purchase was made by them in the name of C. H. Gaul, who acted in the transaction as their agent and trustee, and the contract of purchase provided for payments therefor in instalments covering a period of years.

On December 13, 1927, about six months later, appellants purchased one of these lots from said P. N. Snyder, to wit,lot 45, for the contract price of $7,500, made a down payment of $1500, and under the terms of the contract of purchase agreed to pay the balance in monthly instalments. This contract was executed by Gaul as seller and by appellants as buyers.

On June 30, 1930, respondent Richards and Snyder divided their interest in the venture, whereupon Gaul, the trustee for them, assigned to each, six of the lots. In this division Snyder received the contract for the purchase by appellants of lot 45. At this time there was a balance of $2,150 unpaid on account of the purchase of lot 45 by Snyder and respondent, and at the same time there was a balance of $3,750 unpaid and due Snyder and respondent on account of the purchase from them by appellants of said lot 45. After these assignments were made, as between Snyder and respondent, Snyder had no monetary interest in the con

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tracts so assigned to respondent and likewise respondent had no monetary interest in, or connection with, the contracts so assigned to Snyder.

The negotiations for the purchase of lot 45 by appellants was solely between them and Snyder; neither Gaul nor respondent took any part in the transaction. Appellants completed the payment of the purchase price of lot 45 on August 17, 1934. Some time previous to that date Snyder had assigned appellants’ contract for the purchase of lot 45 to The Vega Corporation, and had notified appellants of the assignment. On October 8, 1934, appellants notified The Vega Corporation that final payment for said lot had been made by them and requested that they be advised when they might expect a deed to the lot. Subsequently, in December, 1934, appellants made demand upon Snyder for a deed and were advised that on account of pending litigation a deed could not be delivered at that time. It also appears that Snyder and respondent had not paid for said lot 45 and therefore could make no delivery of the deed to appellants. On February 16, 1935, appellants served notice of rescission on Snyder, The Vega Corporation and Gaul, and on March 4, 1935, filed this action against Snyder, Gaul and The Vega Corporation for the recovery of the purchase price. Thereafter, on March 20, 1935, appellants, upon learning of respondent’s relation to the transaction, served notice of rescission on respondent and on the same day filed an amended complaint making respondent a party defendant. No demand for a deed was made by appellants on Gaul or respondent. Five months after the action herein was filed and three days before the commencement of the trial in the court below, to wit, on August 2, 1935, a deed to said lot was obtained by Snyder and tendered to appellants, which tender was then and there rejected.