Brooks v. Fidelity Savings & Loan Assn.

[115]

PULLEN, P. J.

This is an appeal from an order sustaining the demurrer to the amended complaint and from the order of dismissal and the judgment based thereon.

After alleging the jurisdictional facts it appears from the amended complaint that on or about the 3d day of February, 1928, plaintiffs executed and delivered to defendant Fidelity Savings and Loan Association their promissory note in the sum of $15,000, payable in monthly instalments of $210, which included interest at the rate of 84/10 per cent per annum. Thereafter the Pacific States Savings and Loan Company became the owner of the note and the deed of trust securing the same. On June 25, 1935, there was a balance due upon the note of $11,118.56.

The amended complaint further alleges that prior to June 25, 1935, plaintiff had been negotiating with defendants for the refinancing of the note and trust deed through the Reconstruction Finance Corporation upon the basis of the payment to the defendants of the sum of $10,000 in full satisfaction of said obligation, it being alleged that as a consideration for the reduction and refinancing of said loan plaintiffs would make an application to the Reconstruction Finance Corporation, and promised that they would pay any and all expenses incidental to the securing of such loan, and do all things that might be required of them by the Reconstruction Finance Corporation in order to secure the loan.

On the 25th day of June, 1935, the defendants accepted plaintiffs ’ proposition, and agreed in writing that they would, in consideration of said promises on the part of plaintiffs and in consideration of the payment to them of the sum of $10,000, release said trust deed and satisfy and discharge said debt; they knowing at the time of said agreement that the offer of plaintiffs was unequal to the amount due on said note and trust deed. Thereupon, it is alleged, plaintiffs expended large sums for surveying, appraising and insuring the property, and devoted many days of time thereto.

It is then alleged that on the 27th of September, 1935, the Reconstruction Finance Corporation approved a loan to plaintiffs whereby plaintiffs were able to pay defendants the sum of $10,000, and since that date plaintiffs have been ready, able and willing to pay said $10,000 providing defendants would satisfy the note and reconvey the security, and although informed of such approval by the Reconstruction