Moore v. White

GOODELL, J.

This is an appeal from a judgment for $2,000 and interest, based on a complaint for money had and received by appellant for respondents’ use and benefit.

Respondents owned a home in San Leandro which they desired to sell, and appellant owned a multiple dwelling in Oakland which was for sale. Respondents’ purpose in selling was to reinvest the proceeds in flats. They were satisfied with appellant’s property and orally agreed on the price of $17,000 therefor. Appellant required a down payment of $2,000 but would not agree to the escrowing of the money since he had need for it in connection with another piece of property of his, and respondents agreed to pay the money without an escrow.

Respondents told appellant that the time of their payment of the remaining $15,000 would necessarily be indefinite because they first had to sell their San Leandro property (which was already on the market) and did not know when its sale would be accomplished. They said it might be a matter of

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months or weeks but expressed the hope that it would be soon. Appellant expressed himself as fully understanding respondents’ problem and said it would be all right with him, but that the time could not be left altogether indefinite.

Respondents’ down payment of $2,000 was made at once, and they were given a receipt reading as follows:

“Oakland Calif. Oct. 18, 1947.

“Contract agreement to be made as per oral arrangement.

‘ ‘ Total purchase price $17,000.00.

“Received of Mr. & Mrs. Charles W. Moore the sum of two thousand Dollars $2,000.00 as payment on Property at 166-164 Athol.

“Amount of Account $2,000.00 paid by cash.

Wilber White.”

On November 18, a formal written contract of sale, prepared by appellant (who was a real estate broker) was presented by him to respondents for execution, dated back, as of October 18, the date of the receipt. It recited the total price of $17,000, acknowledged receipt of the $2,000, and provided