Salomon v. Cooper

[522]

MOORE, P. J.

Appellants as vendors sued to enforce performance of a contract for the sale of real property and in the alternative for damages. At the trial appellants waived their right of action to enforce performance and stood upon their demand for damages.

The writing, alleged to contain the obligations of respondents, acknowledges receipt of $250 as a deposit on account of the purchase of the property which was sold “subject to pro rate taxes for fiscal year 1948, conditions, restrictions ... of record . . . for the purchase price, of $20,800. and bonds of record with. an unpaid balance” not named, “the balance of the purchase price is to be placed in escrow with Citizens National Trust and Savings Bank of Los Angeles [branch not designated] within 60 days from the date hereof, as follows, to-wit: cash:-, Buyer to pay all cash up to present first trust deed and assume the prevailing trust deed, Seller to furnish termite clearance by licensed inspector ... to pay for scraping of floor in dining room of lower apt. Heater to be installed at the Sellers expense in upper apt. Buyer to give a note of returning $15.00 per mo. if seller moves before 30 months.

“And it is hereby agreed: 1st—That in the event said purchaser shall fail to pay the balance of said purchase price or complete said purchase as herein provided, the amounts paid hereon shall be retained by seller in consideration of accepting this agreement.”

No amount of scrutiny of the document declared upon has brought to light those provisions essential to an enforceable contract for the purchase of realty. The writing provides that the vendor is to receive a nonassignable lease at $50 per month but not a term of the lease is specified other than the monthly payments and its duration. Since a lease of realty for a period longer than one year is not valid unless in writing, it follows that'one important consideration (Civ. Code, § 1624, subd. 4) for the contract of sale has not been agreed upon. By reason of the absénce of vital factors from the contract it is wanting in mutuality and is consequently without binding effect.

(Wineburgh

v.

Gay,