Spellman v. Dixon

ROTH, P. J.

Appellants appeal from a judgment denying them specific performance or money damages for an alleged breach of contract to convey real property.

Respondent, an 82-year-old widow, was the owner of certain real property in Reseda. On May 24, 1961, appellant paid respondent $1,350 outside of escrow and the parties then executed escrow instructions for the sale and purchase of respondent’s property for the sum of $40,000, $30,000 of which was to be subordinated to a first deed of trust ‘ ‘ in form furnished by the title company, and upon terms and conditions approved by Buyers and Seller, to be furnished to the escrow. ’ ’

Conditions provided for including rezoning of the property, were to occur or be performed on or before November 30, 1961, “but ... if said conditions had not been complied with by that time, then the escrow agent was nevertheless to complete said escrow as soon as the conditions (except as to time) had been complied with . . . .” Appellant John W. Spellman was and had been for many years a licensed real estate broker. No rezoning having occurred prior to the original date of escrow termination, John persuaded respondent to extend the original expiration date to October 10, 1962. John admitted that at the time he obtained this latter extension the value of the property was in the “neighborhood of $55,000.”

On June 5, 1962, respondent repudiated and terminated the escrow and offered to return the money and all things of value she had received from appellants. On August 8, 1962, appellants advised they were willing and able to complete

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performance of the agreement and they “were willing to and did waive the benefit of . . . [the subordination agreement.] ” Respondent did not accept, and formally, in writing, rescinded the agreement on August 13,1962.

On September 24, 1962, respondent sold the property in question for $57,760 to third persons. Appellants thereupon brought this action for specific performance or for money damages.

The trial court held that the contract was too uncertain and specifically the subordination clause thereof to enforce and found:

“ (1) There occurred no breach of contract by defendant;