Moresco v. Foppiano

SBENK, J.

The plaintiff sued to recover from the defendants certain sums paid under an oral contract for the purchase and sale of real property alleged to have been breached by the defendants, and other moneys expended for permanent improvements on the property. The plaintiff also sought to foreclose the purchaser’s lien provided by section 3050 of the Civil Code. The defendants filed an answer, and defendant Foppiano, the owner of the real property, filed a cross-complaint praying for specific performance of the contract. The court found that the defendant G-ianelli acted solely as agent for the defendant Fop-piano, and that he thereby sustained no liability to the plaintiff. Judgment was rendered for the plaintiff against the defendant Foppiano alone for the sum of $5,386.93. It was adjudged that the plaintiff was entitled to a foreclosure of his purchaser’s lien, and foreclosure was accordingly decreed. The defendant Foppiano, hereinafter referred to as the defendant, moved for a new trial. The court ordered the motion granted unless the plaintiff should remit $1,000 of the judgment as the reasonable value of the plaintiff’s use and occupation of the premises. The plaintiff filed such remission and the motion for new trial was denied. .The defendant appealed from the judgment.

The oral contract was entered into on March 1, 1932, for the sale by the defendant to the plaintiff of 62 acres of farm and orchard land in San Joaquin County. The plaintiff agreed to pay therefor the sum of $14,250, $1,000 at the time of the making of the contract, which was paid, and an additional cash payment of $2,250 at the time of the delivery of the deed. The plaintiff agreed, upon delivery of the deed, to execute and deliver to the defendant his note and a trust deed on the property to secure payment of the balance of the purchase price. The balance was to be made payable $2,000 at the end of the second year, and $2,000 at the end of each year thereafter unless there was a crop failure. At the end of the fifth year the entire balance remaining unpaid was to be due and -payable.

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On March 17, 1932, the plaintiff paid to the defendant the sum of $2,250, but the defendant did not deliver or offer to deliver a deed to the premises although the same was demanded. The plaintiff often requested of the defendant’s agent delivery of the deed of conveyance, but was put off by promises of future delivery. The plaintiff went into possession of the property and farmed the land in 1932 and 1933. The court found that improvements of the value of $1,000 had been placed on the premises by the plaintiff before July 1, 1932. On July 1, 1933, he paid to the defendant $497.73 and on October 18, 1933, the further sum of $639.20. The plaintiff left the premises on December 15, 1933. On February 23, 1934, he served a notice of rescission and on February 28, 1934, he brought the present action.