Ruth v. Lytton Savings & Loan Ass'n

THE COURT

We filed our judgment in this matter on October 28, 1968; with our opinion it is reported in 266 Cal.App.2d at page 831 [72 Cal.Rptr. 521], The successful appellants Ruth, plaintiffs below, have moved to recall the remittitur, basing their motion on an uncertainty in the judg

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ment as to the time of the commencement of interest on the sum adjudged due them from respondent Transamerica Title Insurance Company, formerly City Title Insurance Company.

We have granted appellants’ motion, on the grounds of this court’s inadvertence (see

In re McGee,

37 Cal.2d 6 [229 P.2d 780]), and to clarify and make certain that which is implicit in our opinion and judgment. (See

Oil Base, Inc.

v.

Transport Indent. Co.,

148 Cal.App.2d 490 [306 P.2d 924].)

In our opinion (266 Cal.App.2d at pp. 842, 843) we stated:

“As has been demonstrated, on substantial evidence the trial court concluded that ‘City Title was negligent, breached plaintiff’s escrow instructions and breached its fiduciary duty to plaintiff. ’ Whether the resulting liability be treated as arising in contract or in tort the measure of damages is the amount which will compensate plaintiffs for all of the detriment proximately resulting therefrom. (Civ. Code, §§3300, 3333.)

“Had City Title honored plaintiffs’ escrow instructions by recording their trust deeds as first liens, plaintiffs would have received, in exchange for their property, $40,000 cash and trust deed security unquestionably worth $118,000. For the reasons we have outlined, their trust deeds would not, in law, have been subrogated to those of Lytton. On the other hand, and a more probable eventuality, if the transaction was aborted due to Lytton’s unwillingness to meet the seller’s escrow instructions, plaintiffs would have remained the owners of land shown to be worth $158,000 by uneontradieted testimony. [Footnote omitted.] In either view the damage to plaintiffs proximately flowing from City Title’s mishandling of the escrow was $158,000, less the $40,000 received from the escrow—$118,000. ’ ’