Krupp v. Mullen

PEEK, J.

This is an appeal by plaintiffs from a summary judgment in favor of defendants.

The record shows that two days after the expiration of the term set forth in a written agreement between the parties, plaintiffs filed a complaint by which they sought to compel defendants to perform said agreement. By the terms thereof defendants agreed to sell and plaintiffs agreed to buy certain unpatented land located in Siskiyou county for the sum of $2,500; of this sum $500 was to be paid upon the execution of the agreement and the balance upon the execution of the deed. It was further provided that if a patent was not granted within 18 months, or if at any time during that period it was refused, the $500 was to be refunded. Time was not declared to be of the essence and no provision was made as to possession in the interim between the making of the contract and the transfer of the deed. Subsequently two amended complaints were filed, the third and last, which is the one now before this court, being filed approximately 14 months after the proceedings were commenced. The allegations of the complaint' were that in accordance with said agreement plaintiffs paid to defendants the sum of $500 and thereafter performed

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all of the conditions on their part; that they demanded of defendants the delivery of the deed to the property but that defendants refused. They also alleged that prior to the expiration date of said agreement they orally stated to defendants that they would accept a deed without first having the property patented. The reasonable value of the property was alleged to be the sum of $2,500. In a second count they alternatively prayed for damages for the alleged breach if performance could not be had. Defendants’ answer denied the material allegations of the complaint; that $2,500 was the fair and reasonable value at the time the contract was made, and further alleged that at the time of the filing of the action the value of the property was the sum of $8,500.

On the same day their answer was filed the defendants filed a notice of motion for summary judgment supported by the affidavit of the defendant William W. Mullen, who therein averred that on the day following the execution of the agreement their house was destroyed by fire; that the construction of a new home was started immediately thereafter; that for one day plaintiff Fred Krupp assisted in the building thereof; that the cost of the home was approximately $6,000; that both of the plaintiffs observed the construction of the home almost daily; that plaintiffs stated to defendants they were tired of waiting to complete the purchase and had bought another piece of land upon which they had begun construction of a house which construction continued until the filing of the present action when it was stopped; that plaintiffs visited defendants in their new home on a date prior to the expiration of the 18-month term and asked defendants how they (plaintiffs) stood on the agreement; that they were informed by defendants that it could be renewed provided the cost of the new house was added to the original purchase price, making a total of $8,500, and that plaintiffs made no reply thereto but later instituted this proceeding. The affidavit further averred that Mullen was present during the course of the taking of the deposition of plaintiff Fred Krupp who, on that occasion, stated that at no time had he waived the requirement of a patent until the allegation of waiver was made in his complaint; that he had not offered to pay the purchase price nor- demand a deed prior to the filing of the complaint and that he believed the value of the property to be in excess of $2,500. Mullen also averred that Mrs. Adele Krupp had made like statements in her deposition.