Tesseyman v. Fisher

VALLÉE, J.

This is a companion case to

Fisher

v.

Nash Building Co., Inc., ante,

p. 397 [248 P.2d 466]. Both opinions should be read together for a clear understanding of the facts. The pleadings in that action were made a part of the pleadings in the present action by reference.

Plaintiff appeals from a judgment which decrees that he take nothing; that in the event Nash Building Company, Inc., pays the judgment rendered against it in the Fisher case, the motel property and the furniture and fixtures shall be held by it as security for the sums paid by it, with power to sell in order to reimburse it for the money paid; but in the event Tesseyman pays the Nash Company the sums paid in satisfaction of the judgment in the Fisher case, the latter company shall execute a deed and bill of sale of the motel and its furniture and fixtures to Tesseyman.

The principal issue presented at the trial was whether, under the circumstances alleged by plaintiff, there was a verbal agreement to trade his hotel for the motel, or whether, as maintained by the defendants, there was an outright sale of the motel for a cash consideration, a portion of which was paid with monies derived from the sale of plaintiff’s hotel and placed in escrow under instructions of March 23d and April 11, 1949.

1

[406]

The court found that the transaction was a sale and not a trade; title to the motel was to be taken in the name of Nash Company, and upon payment of the full purchase price it is to convey the motel to plaintiff; proceeds used in part payment of the purchase price of the motel were derived from the sale of plaintiff’s hotel; these funds, together with a deed from Nash Company conveying the motel to Tesseyman, were deposited in escrow; Tesseyman had knowledge of each and all of the transactions; he agreed to pay the balance of the purchase price on or before August 15, 1949, and there is unpaid to the Fishers the sum of $37,001.17; the Fishers commenced action 178.00

2

and recovered judgment against Nash Company for $37,001.17, which judgment decreed a lien against the motel property as security therefor, and ordered that all deeds and bills of sale on deposit with the escrow holder be retained by it to abide the further order of the court.