Miller v. Joyce

WHITE, P. J.

Plaintiffs appeal from the judgment “that this action is hereby dismissed under provision 437c of the California Code of Civil Procedure as to defendant Mildred Joyce and said defendant is given judgment for her costs in the sum of $10.50.” The judgment followed the granting of respondent’s motion for summary judgment.

[357]

The instant action is one for the specific performance of a written agreement “by the terms of which the defendants accepted the plaintiffs’ offer to purchase the real estate” described. Defendant, by her answer, denied the existence of any agreement with plaintiffs.

Appellants, in their brief, state that “Findings of Fact and Conclusions of Law were not waived at the time the court granted respondent’s Motion for Summary Judgment and were requested to be included in the . . . clerk’s transcript.” The only question tried on a motion for summary judgment is whether the party opposing the motion has shown by affidavits the existence of a triable issue of fact. No findings of fact could have been made.

Plaintiff Peter J. Miller, in his affidavit opposing defendant’s motion for summary judgment, avers: “That ... on December 13, 1954, affiant entered into a sales agreement and deposited with R. R. Nehls the sum of Two Hundred and no/100 ($200.00) Dollars, and a photostatic copy of the sales agreement is attached hereto, marked Exhibit ‘A,’ and made a part hereof by reference.” Said Exhibit “A” is a receipt signed by “R. R. Nehls, (broker),” wherein he acknowledged that appellants had paid to him $200 as part payment on certain real estate at the price of $3,300, payable $1,000 cash and balance to be secured by first trust deed payable $100 per quarter. Said deposit receipt provides further: " Should the seller fail to approve this sale within 30 days from date hereof, buyer’s deposit shall be returned upon demand. There are no oral agreements not contained herein.” Below the signature of the broker, is the following: “I agree to purchase said property upon the above terms and conditions” signed by “Peter J. Miller (Buyer).” And below that is the form for seller’s agreement to sell, which was never signed. Seller’s name does not appear in said document.

By the affidavit of R. R. Nehls in opposition to the motion for summary judgment, he avers that he “subsequently advised the defendant of the sale . . . and requested the defendant to forward the deed to the property; that on January 1, 1955, the defendant wrote a letter wherein she agreed to send the deed to your affiant, and that a photostatic copy of said letter is attached hereto, marked Exhibit D, and is made a part hereof by reference.” Said letter of January 1, 1955, from respondent to R. R. Nehls is as follows: “Thank you for your recent letter concerning my lot in Alhambra. As the lot was purchased around 1924, I have had some difficulty