Lansburgh v. Market Street Railway Co.

98 Cal.App.2d 426 (1950) S. LAZ LANSBURGH, Appellant,

v.

MARKET STREET RAILWAY COMPANY (a Corporation), Respondent.

Civ. No. 14420. California Court of Appeals. First Dist., Div. Two.

July 13, 1950. S. Laz Lansburgh, in pro. per., for Appellant.

Cyril Appel, Ivores R. Dains and George Liebermann for Respondent.

NOURSE, P. J.

S. Laz Lansburgh, as assignee of and substituted for the original plaintiff Timothy S. Sheehan, appeals from a judgment denying his recovery of an amount of $20,000 paid by said Sheehan to Market Street Railway Co. on the purchase price of $400,000 for certain real property at Market and Valencia Streets in San Francisco.

The agreement to sell, consisting of a uniform deposit receipt for $10,000 dated September 20, 1947, and an approval of seller signed within 10 days thereafter, required purchaser to pay an additional deposit of $10,000 upon the approval of seller, and to examine title and report valid objections thereto not later than December 30, 1947; seller would have 90 days thereafter to remove them and give purchaser written notice of removal and purchaser five days after removal to pay the balance of the purchase price to City Title Insurance Company, seller to deliver to said title company a grant deed "conveying good title insured as such by said title company." If an objection were not timely removed purchaser could elect [428] to terminate the agreement and have the deposit returned; if purchaser defaulted the agreement would terminate and forfeiture of the deposit be the sole remedy of seller. Time was made of the essence.

Purchaser paid the additional deposit, ordered title research by the named title company, and on December 29, 1947, reported 10 objections to the title of which only the last one is still relevant. It reads: "10. Project for extension of Gough Street from Market to Otis Street, with contemplation of purchase of portion of this property therefor, as shown by preliminary plans on file in the office of the Department of Public Works." In relation to other objections seller, who previously on December 29, 1947, had deposited a grant deed with the title company, notified purchaser on February 9, 1948, that a decree establishing title as to all persons had been obtained in the San Francisco Superior Court and had been recorded, but with respect to the asserted tenth objection seller evidently could take no measures. On April 2, 1948, purchaser informed seller of his election to terminate the agreement on the ground that some of the objections specified had not been removed and could not be timely removed and demanded return of the deposit. The return was refused and this action was commenced soon thereafter.