Newmire v. Chapman

[361]

PULLEN, P. J.

Plaintiff, as assignee of a vendee in an agreement for the purchase and sale of real property, brought this action in damages for failure of the vendor to perform as agreed. Judgment was entered in favor of plaintiff, from which defendant appeals.

In 1924 an agreement of sale of certain real property was entered into between William Chapman, defendant and appellant, herein, through his attorney-in-fact, Charles Lantz, and Earl G. Griffin. Payments were made by Griffin to Lantz according to the terms of the agreement for several months, who then assigned his interest in the agreement to Earl Newmire and Frederick Ohm. Lantz, as attorney-in-fact for the vendor, was notified of this assignment and consented thereto. Thereafter Ohm assigned to Newmire and Newmire assigned to Ola Newmire, plaintiff and respondent herein.

The record discloses that some fifteen payments on account of the contract were paid by Earl Newmire or Ola Newmire to Lantz. On June 3,1931, some $700 remained unpaid under this agreement.' In August, 1932, letters were received by Earl Newmire from Alfred S. Chapman, attorney for William Chapman, appellant herein, informing him of the death of Lantz and stating that an agreement for the purchase of the particular real property had been found in the files of Mr. Lantz and that they were informed that he was purchasing the property and that the records showed a balance due of $720 on the principal and stated that he (Chapman) desired a record in his office files as to what disposition Newmire would make of the matter. Newmire called at the office of Mr. Chapman, who, according to the testimony of Mr. New-mire, then demanded payment of the balance due and promised to furnish a certificate of title. About two weeks later, Newmire called for the certificate of title, but it was not ready. After another unsuccessful attempt or two to get his certificate of title, Newmire tendered the balance due and demanded his deed. Owing to some defect, however, in the title it was impossible to deliver a good title and after considerable delay, notice of rescission was given by plaintiff to defendant and this action was commenced, resulting in the judgment from which this appeal is taken.

It is the first contention of appellant that inasmuch as the agreement of sale provided that it was not assignable