Barnhart v. Blackburn

SPENCE, J.

Plaintiffs filed a complaint entitled “Complaint for Money on Contract”. It contained two counts. On a trial by the court sitting without a jury defendants’ motion for nonsuit as to the first count was granted. Judgment was entered in favor of the defendants on the first count and in favor of plaintiffs on the second count. Defendants appeal from that portion of the judgment relating to the second count, but no appeal has been taken from the portion of the judgment relating to the first count.

In the second count of the complaint, which was filed in 1929, plaintiffs allege that on May 6, 1927, plaintiffs and defendants entered into an agreement whereby “plaintiffs agreed to sell to the defendants and defendants agreed to buy from plaintiffs” certain real property in the city of Hermosa Beach “and that as a consideration for the said sale the defendants agreed to deliver and transfer to the plaintiffs thirty-five (35) shares of the capital stock of Disappearing Roller Screen Company, Inc.”; that plaintiffs ‘•‘have complied fully with the said contract and have delivered into the said escrow a grant deed to the said property”, but that “defendants have failed, neglected and refused, and'still fail, neglect and refuse to deliver into the said escrow said thirty-five (35) shares of the capital stock of the Disappearing Roller Screen Company, Inc.”; that said “thirty-five (35) shares of stock are of the reasonable value of $5250.00”. The prayer was for the alleged value of said stock. The answer denied certain of the material allegations of the complaint, including all of the allegations relating to performance on the part of plaintiffs.

The agreement of the parties was embraced in certain escrow instructions signed by them on March 6, 1927. No time for performance was specified therein. The evidence

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offered on behalf of plaintiffs affirmatively showed that neither plaintiffs nor defendants had complied with the terms of said agreement. Plaintiffs failed to deliver a deed and defendants failed to deliver the stock to the bank named as the escrow-holder. There was evidence tending to show that the parties had on various occasions discussed the performance of the agreement until some time in December, 1928, at which time, according to the testimony of plaintiffs, defendants informed them that they would not take the property or deliver the stock. It was conceded by plaintiffs upon the trial that no tender of a deed to the property had been made to defendants prior to the commencement of this action. The complaint herein was not amended and no leave to amend was asked by plaintiffs. In the findings the trial court found against plaintiffs on the issue of performance, but went beyond the issues embraced within the pleadings and made findings showing an excuse for nonperformance. It further found that the value of the stock “at the time when said written agreement was entered into” was $100 per share and on this basis entered a money judgment in favor of plaintiffs. At the conclusion of the findings it was recited that defendants were entitled to a good and sufficient grant deed conveying the property and the judgment recited that such deed had been deposited into court. 0