Martinelli v. Hogrefe

JOHNSON, J., pro tem.

This is an action to recover the sum of $500 based upon a complaint for money had and received in connection with a transaction for the purchase of real estate by plaintiff from the defendants. Plaintiff, appeals from a judgment in favor of the defendants.

On July 11, 1925, the parties entered into a written agreement whereby plaintiff agreed to buy from defendants certain real property situated at the northeast corner of Francisco and Polk Streets in San Francisco. Of the agreed purchase price of $17,500, five hundred dollars was paid at the time of the contract; and it was provided that plaintiff should have twenty days for examination of title and report of any objections, and that if no objections were reported within the time designated, the balance of the purchase price should be paid at the expiration of such time to the City Title Insurance Company for account of the defendants, and the defendants should thereupon deliver at the office of the title company a duly executed deed of grant. Time was declared to be of the essence of the contract; and in case of failure of the plaintiff to comply with any conditions to. be performed on his part, all his rights were to cease, and the defendants were to be released from all further obligation, with the right either to retain the deposit of $500 “as liquidated and agreed damages”, or at their election to institute action for specific performance of the contract. The defendants were to' have five days within which to make their election after the date of termination of the time allowed the plaintiff for completion of the contract.

In describing the property the contract made mention that the property was subject to an easement for a driveway of a designated width, and that the Francisco Street, frontage was “subject to set back”.

On July 29th, the plaintiff reported to defendants an objection to a “permanent right of way” for the driveway, and an objection also that some other lot owner on Francisco Street was erecting a building without observing any “set; back” regulation. No mention is made in the briefs of

[440]

these objections, nor does any reliance appear to have been placed on them at the trial. We regard them, therefore, as inconsequential.

In the absence of any substantial objection, plaintiff was under obligation to pay the balance of the purchase price by July 31st; but though the defendants deposited their deed with the City Title Insurance Company on that day, together with appropriate instructions for delivery to plaintiff on payment by him pursuant to the contract, plaintiff wholly failed to perform his undertaking. Accordingly, on August 4th, defendants notified plaintiff in writing that unless he should make payment of the agreed balance by August 5th, plaintiff’s deposit of $500 would be “considered as a liquidation of the damage sustained”, and that the deed deposited on July 31st would be withdrawn and any rights of plaintiff to purchase would be “considered at an end”.