Ajax Holding Co. v. Heinsbergen

MOORE, P. J.

The question for decision is whether the summary judgment of dismissal is correct where the only writing signed by defendants for the sale of a number of city lots and the apartment hotel on a number of them was escrow instructions prepared by plaintiff in which, before signing, defendants inserted a supplement or counterproposal requiring their own approval of letters relative to the transaction to be written by plaintiff, which supplement was never accepted by plaintiff.

Summary judgment herein denied plaintiff damages allegedly suffered by reason of defendants’ refusal to convey real and personal property in accordance with a written agreement. The complaint filed August 3, 1943, alleges (1) plaintiff’s compliance with, and its readiness to perform, all of its obligations under an agreement in writing to buy from de

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fendants an apartment house, its furniture, and six lots for $215,000, $40,000 payable in cash, the balance to be evidenced by a promissory note secured by a deed of trust on the property; (2) the refusal of defendants to accept the cash, or to perform any term, covenant or conditions imposed by the writing. As an item of special damage it pleads the employment. of attorney Bank and the reasonable value of his services in attempting to prevail upon defendants to perform the contract.

The answer filed August 13, 1943, denies the execution of any agreement to sell the property. It alleges that the minds of the parties had never met upon any terms for the sale and purchase; that to the time of filing the complaint offers and counteroffers had been made, but that the parties never unconditionally agreed upon any offer or counteroffer. It admits that they refused to accept $40,000 on account of the alleged sale; that attorney Bank attempted to negotiate a purchase of the property but not on the terms alleged in the complaint, and denies that defendants entered into any agreement for the sale of their property through Mr. Bank, or that his services were necessary.

The only writing ever signed by defendants was certain escrow instructions prepared and placed by plaintiff with the Title Insurance and Trust Company. Defendants’ notice of motion for judgment of dismissal filed August 26, 1943, under section 437c, Code of Civil Procedure, is based upon the grounds (1) that there was never a written contract for the sale as alleged; (2) that plaintiff made an offer by means of proposed escrow instructions; (3) that defendants made a counteroffer which was never accepted in the escrow; and (4) that defendants never approved the documents required of plaintiff by defendants.