Palmer v. Fleming

SHEPARD, J.

This is an action to recover $5,000 paid by plaintiff to defendants for an option to purchase realty.

Plaintiff alleges that on May 23, 1955, the parties entered into a written agreement and option whereby for the sum of $5,000 defendants agreed to hold until August 23, 1955, at 12 noon (time being of the essence of the option), subject exclusively to the order of this plaintiff certain described realty for a total purchase price of $102,000 in cash, or secured in accordance with written escrow terms attached to and made a part of the agreement. It was further agreed that if plaintiff elected to exercise the option the $5,000 paid should be credited on the purchase price, otherwise it was to be retained by these defendants in consideration of the granting of the option and the holding of the property for plaintiff’s optional purchase. If defendants were unable to deliver title within 30 days after notice to them of the exercise of the option the consideration was to be returned. All notices were required to be delivered to Errol K. Fleming (one of the defendants herein) at 6190 Hawarden Drive, Riverside, California.

The agreement provides that the date of the opening of the escrow will be the date of the exercise of the option; that the buyer will deposit in escrow $1,000 at its opening, an additional $23,000 within 30 days thereafter, and a trust deed and note for $73,000. The agreement made further provision on

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the following matters: prorate of taxes as of close of escrow; delivery of title subject to covenants, conditions, restrictions and easements of record; a pipeline easement with appurtenant rights, canal stock and percentage interest in a pumping plant; usual buyer and seller escrow charges; possession to buyer as of close of escrow; usual trust deed form with a prohibition therein against removal of trees; provision for locating a well site and releasing from the trust deed lien sufficient ground to accommodate the well and new pumping plant; a provision for deeding full unencumbered title to buyer of certain lots upon payment of $7,500 (Lots 12, 15 and 16 of Monte Vista Tract, comprising about 2% acres); provision that there be no subordination of trust deed encumbrance; provision for annual payments of $30,000 with final balance the third year, with interest at 6 per cent; provision that if buyer fully complied with escrow by June 23, 1955, buyer entitled to entire crop with certain other crop advantages if escrow closed before June 13, 1955, otherwise crop to belong to sellers; provision for adjustment by use of second trust deed if first trust deed then on premises could not be released by close of escrow.