Mills v. Herrod

Opinion

AULT, J.

Plaintiff appeals from a partially adverse judgment in an action brought to foreclose a deed of trust securing a $10,000 promissory note.

[215]

The trial court held the underlying transaction was governed by, and in violation of, the Unruh Act (Civ. Code, § 1801 et seq.). As a consequence it awarded plaintiff judgment in the amount of $10,000, but disallowed the lien and all interest. In addition, it awarded court costs and $1,000 in attorney fees to the defendants. The defendants have not filed a cross-appeal.

We conclude the Unruh Act is not applicable to the transaction and reverse the judgment.

Insofar as they relate to the issues raised on appeal, the facts are not in dispute. Plaintiff Mills is in the business of moving houses. On January 28, 1969, upon the request and on behalf of defendants Clarence and Ella Herrod, he purchased a four-bedroom house at a freeway auction, paying the California Division of Highways $4,325 in cash and taking a bill of sale in his own name. At that time the house was located at 4011 Antiem Street in San Diego.

On the same day plaintiff entered into a written agreement with defendants, agreeing to sell the house to them “as is, where is” and to move it to their property at 1677 Maple Street in Chula Vista. For the house moved onto their property, defendants agreed to pay plaintiff $10,000 with 10 percent interest payable in 90 days. Defendants made no down payment but gave plaintiff a promissory note for $10,000 payable in 90 days, bearing interest from January 28, 1969 at 10 percent per annum. As security defendants gave plaintiff a trust deed on their Chula Vista property.

Plaintiff performed his part of the contract. The ‘entire moving procedure took about three weeks, required him to employ from four to eight men, and to pay out several hundred dollars for materials. He elevated a part of the house on its new location so it now has two stories and six bedrooms. Defendants were responsible for constructing the foundation, completing the structure under the elevated portion, hooking up to plumbing and electricity and making the house habitable.