Bonner v. Finney

SPENCE, J.

This action was brought by plaintiffs to recover from defendant the sum of $6,500 as the balance due on the purchase price of certain real property. From a judgment in favor of plaintiffs, defendant appeals.

The original agreement between the parties was evidenced by an instrument in the nature of escrow instructions dated April 9, 1927, and designated “Buyer and Seller Instructions”. This instrument was signed by the parties and deposited with the Title Guarantee and Trust Company. It provided for the payment of $10,500 by the defendant and for the deposit in escrow of a deed executed by plaintiffs to be delivered to defendant upon payment of $10,500. It further provided for the payment to plaintiffs of $4,000 of the purchase price as soon as the title company could show title free and clear. No mention was made of any lease in the original instructions. Upon the trial it appeared that plaintiffs had deposited the deed with the escrow-holder and had received $4,000. Upon stipulation by the defendant “that the plaintiffs performed each and every act necessary and requisite to be done by them, except that they did not secure the signature of Mr. Brown to the lease as provided by the escrow instructions” and the further stipulation that the defendant had not paid the $6,500, plaintiffs rested.

Under the allegations of the answer and cross-complaint defendant offered to show that the original agreement had been modified by supplemental instructions, which evidence was admitted. It appeared that on the day the original instructions were deposited supplemental instructions bearing the same date were signed and deposited with the escrow-holder which read in part as follows:

[520]

“Mutually supplementing our instructions of this date, the payment of the $4,000.00 by the grantee to the grantor of this escrow is contingent upon the grantor (Bonner) placing in escrow for grantee a lease dated April 9th, 1927, by and between Robert A. Brown Jr. and Chris E. Schirm, lessees; W. Folsom Bonner lessor, the signatures of the lessor and the lessee constitute their approval of said lease when signed by them, and your company is relieved from certifying to the regularity, validity or sufficiency of same being responsible for delivery only to Easter May Finney of this lease at the close of escrow. In the event that this lease is not signed by W. Folsom Bonner and placed in this escrow your company will not pay out $4,000.00 previously mentioned.