Gelgud v. Los Angeles Rock & Gravel Co.

WOOD, J.

Plaintiff appeals from a judgment in favor of defendants. It was stipulated that the Los Angeles Rock & Gravel Corporation acquired the assets and assumed the liabilities of the Los Angeles Rock & Gravel Company. For brevity the defendants will hereinafter be referred to as-the Company. No findings were made by the trial court, the

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ease having been tried upon an agreed statement of facts. According to the stipulation plaintiff was the owner of the real property described in the complaint and on or about October 10, 1931, he employed the Company to do certain excavation work thereon for the agreed price of $2,425. The work was completed and the Company, not having been paid, filed a mechanic’s lien against the property for $2,425. On March 16, 1932, “in payment and satisfaction” of the lien, plaintiff caused the property to be conve3red to the Company and as part of the same transaction plaintiff and the Company executed a written agreement dated March 16, 1932, by which -it was agreed that the Company would sell and convey to plaintiff and the plaintiff would buy the property on or before November 19, 1932, for the sum of $2,950, subject to incumbrances of record. The agreement contained the following provision: “It is further understood and agreed that the seller herein mentioned, ma37 at any time on or before November 19, 1932, unless the purchase price above provided for be sooner paid, sell said property to any other person or persons at a gross sales price of Twenty-three Thousand Five Hundred Dollars ($23,500.00) or more, and that this contract shall be canceled upon paj-ment to the buyer herein mentioned of a sum equal to two-thirds of the net amount of said sale price after deducting the amounts then due on all incumbrances of record, together with the sum of Two Thousand Four Hundred Twenty-five Dollars ($2,425.00) due the Los Angeles Rock and Gravel Compaq, and a sales commission not exceeding five (5%) per cent of the selling price.”

Payments on a trust deed upon the property were in default and the holder of the trust deed “threatened” foreclosure. On April 25, 1932, the Company combed the property to the holder of the trust deed for a consideration of $250. No part of this or an3T other sum was paid to plaintiff. At the time of the conveyance by the Company there were two trust deeds upon the property upon one of which there was due the sum of $13,060, and interest in the sum of $438.75. The amount of the other trust deed, which had not matured, was $3,500, and there was due $61.25 for interest. Plaintiff demands payment of two-thirds of the net sum which would be computed upon a sale in the sum of $23,500, less the amounts of the first trust deed and interest, the amount of the mechanic’s lien and the seller’s commission.