Spangler v. Castello

[50]

GRIFFIN, J.

Plaintiff, cross-defendant and appellant Joe R. Spangler (hereinafter referred to as plaintiff) brought this action against defendants, cross-complainants and respondents Daniel S. Gastello and wife (hereinafter referred to as defendants) for specific performance of an escrow agreement to sell certain acreage near Fresno for subdivision purposes. The escrow agreement, dated May 6, 1954, and signed by the parties, provided generally that plaintiff would buy it for $64,600, subsequently changed to $68,000, would pay $20,000 into escrow and execute a trust deed and note to defendants for the remaining $48,000. It also provided that the cross-defendant Home Title Company “may release any lot in the proposed subidivision” under certain conditions. It then specifically provided, in the offer, that the “escrow is contingent upon F.H.A. and V.A. approval” and “if you are unable to comply with these instructions within 7 months from this date said money and instrument shall thereafter be returned to me on demand. In the event that the conditions of this escrow have not been complied with at the expiration of the time provided for herein, you are instructed to complete the same at the earliest possible date thereafter, unless I shall have made written demand upon you for the return of all instruments or money deposited by me.” On November 12, 1954, it was amended to change the sale price to $68,000.

It appears that in connection with the financing of the $20,000 payment above mentioned, plaintiff, on October 25, 1954, entered into a separate escrow agreement in another title company with Mr. and Mrs. Woo (a copy of which is in evidence) whereby they would loan plaintiff this sum, on this same property, when title passed to plaintiff, and he was to execute a

first

trust deed and note on the property to them as security. A grant deed executed by defendants on November 19, 1954, was placed in escrow and was accompanied by a letter authorizing its delivery upon certain conditions, including the delivery to defendants by plaintiff of a

first

trust deed and note in the sum of $48,000 on the property here involved. On November 19, 1954, plaintiff placed in said escrow such a note and first trust deed. The $20,000 was never placed in escrow and no F.H.A. or V.A. approval was obtained. On December 7, 1954, more than seven months after the execution of the escrow agreement, defendants filed with the Home Title Company a notice of rescission, cancellation of escrow, and a demand for return of documents, stating that the escrow instructions had not been complied with and that