Sinks v. Merrill

FOURT, J.

This is an appeal from a judgment of dismissal entered after the trial court granted defendants’ motion for summary judgment in an action for specific performance of a contract for the sale of real property.

The chronology of significant events is as follows:

On April 11, 1962, plaintiff filed a complaint for specific performance of a contract to sell real property.

Defendants filed their demurrer to the complaint on May 9, 1962. The demurrer was sustained with leave to amend on May 16,1962.

Plaintiff filed her first amended complaint on June 1, 1962. Therein plaintiff asserted that on or about March 22, 1962, defendants offered to sell a described parcel of real property; that the offer was in writing; that plaintiff accepted the offer and that on or about March 27, 1962, she deposited the sum of $500 with a designated escrow holder; that by agreement of the parties the escrow holder prepared written escrow instructions concerning the sale and purchase agreement between the parties. A copy of the escrow instructions was attached to the complaint as Exhibit A and was incorporated by reference. The attached escrow instructions bear the signature of plaintiff; however they do not contain the signatures of defendants or any of them.

On June 7, 1962, defendants filed their answer to plaintiff’s amended complaint wherein among other things they admit that plaintiff deposited $500 in escrow and that the escrow holder prepared the proposed escrow instructions “but specifically deny that such deposit and such escrow instructions were ever authorized by or agreed to by these defendants or by any one or any of them, at any time or at all.” Defendants allege that there never was an agreement with plaintiff either in writing or orally or otherwise. There is asserted a separate defense that the first amended com

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plaint does not state facts sufficient to constitute a cause of action against these defendants or either of them.

On June 7, 1962, defendants filed a notice of motion for summary judgment and points and authorities. It is set forth therein that “ [s]aid motion will be pursuant to section 437c of the California Code of Civil Procedure on the ground that plaintiff has no cause of action against the named defendants, and will be based upon this notice and the affidavits of Wilbur J. Merrill, Lloyd E. Merrill, Marjorie J. Ar'metta, Alicia H. Heffer, copies of which affidavits are served with this notice, and said motion is further based on the pleadings on file herein. ’ ’