Weisberg v. Ashcraft

SHINN, P. J.

Defendants who were purchasing a vacant lot on contract agreed to sell the property to plaintiffs for $6,000. The agreement was evidenced by the instructions of the parties given to an escrow holder. May 29, 1957, plaintiffs paid into escrow $200, agreed to pay $300 more June 1st, and within 30 days to pay in $2,972 and give a note and trust deed for the balance of $2,528. Defendants agreed to on or before June 28th convey title free and clear (with exceptions of no materiality), with the proviso that if it should be shown by a title report that the lot was subject to any easement plaintiffs would have the right to give approval to the same and take title subject thereto. Legal title was in L. K. Thompson, who filed in the escrow a demand for the balance payable to him for a deed.

Plaintiffs paid in $300 June 5th,- defendants paid in $450 on June 3rd which, added to $2,972, would meet Thompson’s demand. June 27th, the escrow holder mailed a grant deed to defendants and also mailed to plaintiffs a title report showing an easement over the rear 5 feet of the lot. June 28th or 29th, defendants deposited their deed in escrow. July 1st, plaintiffs signed an acceptance of title subject to the easement. The acceptance was mailed in to the escrow but no record was made of the date of its receipt. July 1st, defendants’ attorney signed on behalf of defendants and mailed to the escrow and to plaintiffs a notice which purported to cancel the agreement and escrow for plaintiffs’ alleged default. This notice was received in the escrow July 2nd. July 5th, plaintiffs deposited in the escrow their note and trust deed and $3,020, which amount included an additional sum required to meet the demand of Thompson.

[795]

Plaintiffs brought this action and were given a decree of specific performance and for damages for defendants ’ refusal to complete the transaction. Defendants appealed from that judgment and it was reversed upon technical grounds. (194 Cal.App.2d 225 [14 Cal.Rptr. 817],)

1

Upon a retrial the ease was submitted upon the entire record of the former trial; specific performance was again decreed but no money judgment was awarded. Defendants appeal. Defendants filed a cross-complaint seeking damages for the clouding of their title. The judgment on the cross-complaint was against them and our discussion will dispose of this feature of the judgment.