Lawrence v. Settle

SHEPARD, Acting P. J.

Plaintiffs brought this action to recover money paid for an option and for damages for breach of the agreement of option. Defendants had judgment, but the trial court granted a motion for a new trial. The appeal is by the defendants from the order granting a new trial.

From the record before us, it appears that on June 12, 1957, in consideration of the payment of $2,500 by plaintiffs to defendants, defendants executed an option agreement by which they granted to plaintiffs an option to buy certain real property for the agreed purchase price of $32,000. The option terms recited, in substance, that the option might be exercised by plaintiffs at any time within seven months, defendants to furnish grant deed and title certificate showing clear title. The details of transfer of title and payment are described as follows:

“Upon the execution of said deed and certificate of title the buyers agree to pay the sellers the further sum of Six

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Thousand Dollars ($6000.00) and execute a first trust deed and note in the amount of Twenty Three Thousand Five Hundred Dollars ($23,500.00) with interest from May 15, 1958 on the amount of principal, remaining from time to time unpaid at the rate of Six Percent (6%) per annum, principal and interest payable in monthly installments of Two Hundred Thirty Five Dollars ($235.00) or more each, on the Fifteenth day of each and every month beginning June 15, 1958. Said Trust Deed Note to contain an acceleration clause. ’'

The fact of the execution of the option and the payment of the $2,500 is not in dispute. The evidence relating to acceptance of the option and matters relating thereto is in conflict.

Plaintiffs’ testimony was to the effect that on January 2, 1958, plaintiff Joe H. Lawrence orally notified defendants that he was then ready to pay the $6,000 and to start the transaction through escrow. Defendant Ilus E. Settle at that time said he didn’t want the money then because a real estate agent was claiming a commission from him for the sale. Mr. Settle did not object to an escrow as such, nor did he object on the ground that the actual cash was not tendered, nor for any other reason than that for his own convenience he wished to put the sale off. Again, on January 11, 1958, a similar conversation was had between Mr. Lawrence and Mr. Settle. At no time did defendants tender to plaintiffs a deed nor make any offer to deliver a deed. Each time his only response was a request for delay. Further testimony was adduced to show that the $6,000 was then available and would be immediately forthcoming if defendants were willing to deliver their deed.