Howard v. Updike

[535]

SHINN, P. J.

Plaintiffs brought this action against Dorothy S. Updike, and others assigned fictitious names, for damages claimed as a result of Mrs. Updike’s refusal to convey real property to them for a price of $40,000 in cash and on terms, pursuant to an oral agreement. Mrs. Updike alone appeared and filed a general demurrer to plaintiffs’ second amended complaint, which was sustained without leave to amend, following which judgment was entered in her favor for costs. Plaintiffs appeal from the judgment.

The allegations of the second amended complaint were that Mrs. Updike owned the property as her separate property; she orally agreed to sell it to plaintiffs for the consideration above mentioned; plaintiffs and Mrs. Updike deposited with an escrow holder “a certain unsigned document entitled escrow instructions, a copy of which is attached to the complaint herein” and incorporated as if specifically set forth. It was also alleged that “defendants Updike and Doe II” deposited with the escrow agent an executed grant deed by which “defendants Updike and Doe I” purported to convey the property to plaintiffs, and that plaintiffs deposited in the escrow $1,000; four days after the date of the agreement and deposit of the deed “defendants Updike and Doe III” recalled the deed and refused to go further with the transaction. Damages of $12,000 were sought as the difference between the contract price and the market value of the property.

The proposed escrow instructions were not signed by any of the parties and no note or memorandum in writing of the transaction or the terms of it was executed.

Plaintiffs contend that the unsigned escrow instructions and the undelivered deed constituted a note or memorandum of the transaction sufficient to meet the requirements of section 1624 of the Civil Code and section 1973 of the Code of Civil Procedure, which are commonly known as the statute of frauds. These sections require, with respect to a purchase or sale of real property, a contract or note or memorandum thereof suberibed by the party to be charged or his agent, and section 1973 also provides that in the absence of such writing or secondary evidence thereof, evidence of the agreement shall not be received.

It is clear that the parties expected the escrow instructions to be signed, and that they were not relying upon any preliminary oral arrangements. It is also clear it was understood that without signed instructions the escrow holder would be without authority to do anything.