Bowman v. Union Trust Co. of San Diego

BARNARD, P. J.

On April 24, 1925, the plaintiff purchased from three members of the Loperena family two lots in the city of San Diego with certain improvements thereon, including a store building and a house. In addition to the cash consideration he gave back a note secured by a trust

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deed on the property, in which the defendant trust company was named as trustee. On January 15, 1938, after steps had been taken to foreclose this trust deed, the plaintiff brought this action for a rescission. He alleged that within three years last past he had discovered that the defendants had breached the contract by failing to credit some of the payments he had made upon the purchase price, offered to re-convey the property upon the repayment to him of the amount he had paid on account of the purchase price, and asked judgment for the total amount he claimed to have paid, with interest from the respective dates of payment.

The main controversy was over a payment of $1,000 made by plaintiff to one of the three owners of the property. This person claimed to be the exclusive owner of an old house situated on the lots and the plaintiff had agreed in writing to give him $1,000 for this house, and $15,000 for his one-half interest in the remainder of the property, contingent upon his being able to purchase the interests of the other two coowners. He left this $1,000 with a bank on this condition, and later agreed to give the other two owners $15,000 for their half interest. Through another agreement and another escrow title to the property was passed to the plaintiff, the named consideration being $30,000, of which $5,000 was paid in cash and a note for $25,000 was given secured by a trust deed. After the latter deal was closed the bank delivered the $1,000 to the one of the three owners who owned the house. In this action the plaintiff claimed that this payment of $1,000 should have been credited upon the trust deed and that he had made certain other payments on the trust deed which had not been credited thereon by the defendants.

The court found in all respects in favor of the defendants, finding, among other things, that the three members of the Loperena family owned this property, with the exception of the house thereon which was owned exclusively by one of them, Martin Loperena; that the plaintiff agreed to purchase the house from Martin for $1,000, and by separate agreement agreed to purchase the remaining interests of the three owners of the property for $30,000; that the trust deed was given as a part of that purchase price; that the $1,000 paid for the house was not a part of the $30,000 to be paid for the remainder of the property, was not to be credited thereon and was not to be credited upon the note and trust deed;