Downer v. Buehrle

MOORE, P. J.

On January 20, 1941, defendants Buehrle executed a writing whereby they leased to appellants for a period of five years certain realty and improvements in Pasadena. The lease provided that should appellants during their faithful performance of the lease desire to purchase the premises, the Buehrles would sell same to appellants “at any time during the faithful fulfilment of the above lease” for $3,500 and all moneys paid by lessors on account of the property for taxes, insurance and assessments, with 6 per cent interest per annum, compounded monthly, from the commencement of the lease. The instrument makes no mention of the manner or method for the exercise of the option.

After the lease had expired the Bnehrles conveyed the premises to respondent. Although appellants did not faithfully perform all covenants imposed upon them by the lease and did not pay or tender the purchase price at any time, after the expiration they instituted action for specific performance alleging that they had elected to buy the property pursuant to their option and had “orally or otherwise” so advised the Buehrles. The court found contrary to such allegations and entered judgment in favor of all defendants.

The questions presented for decision are (1) did the court improperly exclude evidence tending to show an exercise of the option contemporaneously with the execution of the lease, and (2) did appellants tender payment of the option price during the five-year term?

The trial court ruled that “there is nothing ambiguous in the option” and therefore properly concluded that' evidence as to conversations occurring prior to the execution of the lease could not be considered in determining any of the issues under the contract. Since all the testimony which

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appellants assert was admissible pertained to conversations leading up to the execution of the agreement, and since that instrument is entirely unambiguous, such evidence was properly excluded. (Code Civ. Proc., § 1856;

Ross

v.

Sweeters,

119 Cal.App. 716, 723 [7 P.2d 334]; 10 Cal.Jur. § 134, p. 853.) Furthermore, such evidence could not show an exercise of the option to purchase because no option was given until the lease was executed.