Ralston v. Demirjian

MUSSELL, J. pro tem.

This is an appeal from a judgment recovered against defendants for a commission growing out of a contract for the sale of real property.

Defendants were the owners of the real property involved, and listed it for sale with plaintiff real estate brokers at the price of $22,000.

The written agreement which forms the basis of this action was entered into on October 28, 1946. Receipt of the sum of $1,000 from Yervant Nikasarian, the purchaser, was recited therein, and the property was described as a 20-acre vineyard located on the southwest corner of Dinuba Avenue and Highway 99, in the county of Fresno. The agreement contained the following provision: “The seller will take out only two acres from the corner for the gas station and other business. The boundary line of the 20 acres shall start 50 feet from the farthest Bldg, on the 99 Highway side. ’ ’ The instrument was signed by the real estate agent, by the purchaser, Yervant Nikasarian, who agreed to purchase the property on the terms and conditions contained in the contract, and by defendants, who agreed to sell the property described in the agreement on the terms and conditions therein stated, and to pay the agent the sum of $1,100 as commission.

The contract also contained a marginal recital as follows:

1 ‘ The total acreage being 22 ac. the seller will retain only 2 ac. on the corner, leaving 20 ac. for the buyer. ’ ’

On October 30, 1946, the purchaser and plaintiff M. Manashian opened an escrow with the title company. The purchaser deposited the $1,000 theretofore paid and escrow instructions were drawn.

Defendants refused to sign the escrow instructions because of the uncertainty in the description of the 2 acres reserved to them and insisted that a survey be made to ascertain and describe the boundaries. Upon completion of the survey it was found that the entire ranch contained only 19% acres;

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that the boundary did not start at Dinuba Avenue and Highway 99 but commenced at the center line of the Fowler Switch Canal where it intersects the state highway, and that

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acres of the property was located across Dinuba Avenue. There was no planting of vines on this portion. In the discussion which followed the buyer insisted on obtaining 20 acres of vineyard and the sellers were equally insistent that 2 acres be taken out for the business property. The parties could not agree, the buyer withdrew his offer on November 21, 1946, and the present action was filed December 16,1946.