Dusold v. Johnston

101 Cal.App.2d Supp. 907 (1950) ED DUSOLD et al., Appellants,

v.

RICHARD B. JOHNSTON, Respondent.

California Court of Appeals.

Dec. 7, 1950. Edwin M. Campbell for Appellants.

Miller, Higgs & Fletcher for Respondent.

BURCH, J.

Pending negotiations for the leasing of a storeroom, the plaintiffs deposited with the defendant the sum of $450. By this action they seek its recovery, with interest, upon the ground that the negotiations were abortive and that no enforceable contract resulted. Defendant claims a binding obligation was entered into by the terms of which and because of the breach of the plaintiffs he is entitled to retain the $450 as damages. Judgment below was for the defendant and the plaintiffs appealed.

From the agreed statement of facts and admissions in the pleadings, it appears that the parties negotiated for a lease for a five-year term upon a storeroom in La Jolla. The parties signed the following instrument:

"Received of Burtus S. Finch, the sum of Four Hundred Fifty Dollars ($450.00), which sum represents the consideration referred to in page one (1) of the Lease covering the tenancy of the store situated at 5734 La Jolla Boulevard, La Jolla, California, and showing Elroy E. and Cecile M. Stevenson, husband and wife and E. and Naomi DuSold, husband and wife, as Lessees."

Richard B. Johnston

Richard B. Johnston, Lessor

August 17, 1949

"Should the abovenamed Lessees fail to enter into said Lease as abovementioned, on or before September 15, 1949, the undersigned here understands and agrees that the above-described consideration of Four Hundred Fifty Dollars ($450.00) shall, at the option of the Lessor abovenamed, be retained by Lessor, as liquidated damages."

(x) Burtus S. Finch

August 17, 1949 (x) Helen Finch""

It is conceded that Burtus S. Finch was acting for and on behalf of the lessees and was duly authorized. [101 Cal.App.2d Supp. 909]

On September 14, 1949, the plaintiffs demanded of the lessor return of the $450 deposit. In the interim between the writing and the demand, the defendant had prepared and submitted to the plaintiffs an unsigned form of lease containing some 23 paragraphs of covenants and obligations incident to the term, use, rent, repairs, taxes, fire insurance, assignment and subletting, termination by bankruptcy, liability for damages, yielding possession, holding over, attorney's fees, damage for broken pipes, condemnation, forfeiture and remedies, notices, and making time of the essence, none of which covenants and provisions are evidenced in the writing other than a proper description of the premises to be leased. The prepared lease was never executed, and the lessees never acquired possession.