Record MacHine & Tool Co. v. Pageman Holding Corp.

MOORE, P. J.

This is a second appeal.

(Record Machine & Tool Co.

v.

Pageman Holding Corp.,

42 Cal.2d 227 [266 P.2d 1].)

[822]

The question for decision is whether the court’s award of $12,000 as the amount of damage suffered by respondent by virtue of appellant’s not having transferred to respondent a certain patent on a bit used in drilling for oil is excessive. It was the only item of several properties included in the agreement to sell and convey which appellant could not deliver.

In April 1947 appellant agreed to assign five United States Letters Patent and to convey certain real and personal properties to respondent for the sum of $100,000 on terms and conditions detailed in a conditional sales contract. On August 23, 1951, respondent tendered, at the place specified in the agreement of sale, the total unpaid balance, to wit $26,549.18, and its demand that appellant perform the agreement by depositing the necessary instruments of title in escrow for delivery concurrently with appellant’s receipt of the last mentioned sum, the total amount tendered under the conditional sales contract. Appellant refused such tender and refused to perform the contract or to deliver any title paper conveying any of the properties to be conveyed to respondent, although respondent was able and willing to perform according to its tender. The court found that respondent performed all the conditions required of it by the sales agreement and that the tender was valid and immediately vested in respondent title to all the properties to be conveyed. Appellant did not convey one of the patents, No. 2133022, herein designated as 022, and was unable to do so. In an action for specific performance of the sales agreement, the trial court adjudged that respondent was entitled to performance, but failed to find the amount that should have been credited on the purchase price of $100,000 by reason of appellant’s failure to convey patent 022. On appeal the judgment was reversed with directions to “render the same judgment heretofore given, but in addition, shall ascertain and declare the rights of the parties with respect to the payment of the unpaid balance of the purchase price, if any, under the contract, and the effect thereon of defendant’s inability to give good title to the patent it does not own.” Upon a retrial, the court found that $12,000 was the amount to which respondent was entitled by reason of appellant’s inability to convey patent 022. The ensuing judgment is now here on appeal.