Perkins v. Sommers

SHINN, P. J.

This action was denominated by plaintiffs as one for declaratory relief. By the second amended complaint it was sought to have declared void a contract under which plaintiffs agreed to purchase from defendant, Morris A. Sommers, a residential lot improved with a single family dwelling in the city of Long Beach, but on the same facts plaintiffs prayed for a judgment requiring Sommers to accept payment of the unpaid balance of the purchase price • and to convey title to the property. Defendant Morris A. Sommers, Sylvia W. Sommers, and Louis H. Boyar, demurred to the complaint. At the time of the hearing defendants made an oral motion for a judgment on the pleadings, plaintiffs waiving notice of the motion. The court sustained the demurrer and rendered a judgment on the pleadings declaring the written contract of purchase and sale to be valid. The judgment also declared that plaintiffs’ action was barred by section 343 of the Code of Civil Procedure, and that Morris A. Sommers is estopped to deny the validity of the contract. Plaintiffs appeal.

We are of the opinon that the judgment was a proper declaration of plaintiffs’ rights on the facts pleaded in the complaint. It was alleged that prior to the 5th day of May, 1945, plaintiffs orally agreed to purchase the property from Morris A. Sommers for $6,000, $200 down and $42.50 per month including interest, plus taxes, assessments, mortgage and fire insurance premiums, and that on or about that date the agreement was reduced to writing; plaintiffs have made all the payments as they fell due; on or about the 1st day of December, 1951, plaintiffs discovered that Sommers had subdivided certain unimproved real property of which the lot in question was a part, and that before selling lots in the subdivision he had failed to comply with the requirements of section 11010(e) of the Business and Professions Code, in that he had failed to notify the Beal Estate Commissioner in writing of the terms and conditions on which it was intended to dispose of the lots and to file copies of the proposed contracts of sale; plaintiffs thereupon tendered the unpaid balance of the purchase price to Sommers, and demanded a deed; Sommers refused to accept the money or give a deed

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for the reason that the written agreement contained no provision for prepayment of the monthly instalments.