Butterfield v. Gentles

SEAWELL, J.

Plaintiffs Fred R. Butterfield and Metta W. Butterfield, his wife, brought this action for specific performance of a .contract whereby defendant Frank Gentles agreed to purchase real property in San Mateo County owned by them. The trial court held that plaintiffs were entitled to a decree of specific performance, but that defendant should be repaid the sum of $100 from the amount theretofore deposited by him in escrow as a part of the purchase price. Defendant Gentles appeals from the judgment.

The property which was the subject of the contract of sale is located in a sparsely settled, unincorporated area in San Mateo County known as the Devonshire Properties Subdivision and consists of five adjoining lots, with the furnished house thereon. Defendant observed a newspaper advertisement offering the property for sale on March 8, 1936, and on that day viewed the property and very readily signed the contract, which is in the form of a California Real Estate Association deposit receipt, and fixed a purchase price of $5,000, of which $2,500 was payable in cash and the balance was to be represented by a note and deed of trust. Defendant made a deposit of $250 upon signing the contract, and thereafter deposited the balance of the $2,500 in escrow. Subsequently, on April 20, 1936, he gave instructions not to close the deal, or to release to plaintiffs the purchase money deposited in the escrow, and refused to complete the contract on the ground that plaintiff had not satisfied certain terms of the contract pertaining to a rock roadway, and that the garage was not located entirely on the property.

Under the contract of sale the seller was required to place rock three inches thick on the road leading from the garage to an upper road, a distance of about 1100 feet. Defendant contends that the rock placed upon the road did not comply with the contract in that the rock covering was not three inches thick. The court found: “That it is true that plaintiffs agreed to rock the road from the garage on the premises in question, for a distance of eleven hundred feet with three inches of rock; that it is true that rock has not

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been installed at a uniform thickness of three inches on said road, but that where outcroppings of rock appear on said road, the installed rock is less than three inches in thickness and that at other places where there was greater need the installed rock is of greater thickness than three inches; that the requisite quantity of rock to cover the said road at a uniform thickness of three inches has been installed and that the failure to install said rock at said uniform thickness is entirely immaterial.”