Boyd v. A. E. J. Chivers Co.

STURTEVANT, J.

The plaintiffs commenced an action against the defendants to obtain a judgment rescinding a

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contract and to recover damages. The trial court made findings in favor of the defendants and from the judgment entered thereon the plaintiffs have appealed. The defendant Fitz Investment Company is a corporation. Formerly it was known by another name. The personal defendants are officers of the corporation. Hereinafter it will not be necessary for us to refer to any of the defendants excepting the Fitz Investment Company.

On the seventh day of August, 1924, the corporation was engaged in subdividing and selling certain tracts of land in Los Angeles County. Some of the tracts and particularly tract 6573 were orange groves apparently in bearing. Each tract was being farmed as an orange grove. Tract 6573 was being so farmed and was offered for sale in subdivisions as shown by a certain map then on record. On the seventh day of August, 1924, the defendant, as party of the first part, and the plaintiffs Ella N. Boyd and Robert J. Boyd, entered into a written contract under the terms of which the plaintiffs agreed to purchase lot number 43 of tract 6573. The sales price was $1,090. The plaintiffs paid $165 down and agreed to pay $15 monthly, together with interest at seven per cent until the balance was paid. In the contract it is provided that “The party of the first part hereby agrees to place upon said lands described above, the following improvements and none other: 'Sidewalks, curbs, water, gas and electricity and graveled, oiled and rolled streets.” No other covenant on that subject was inserted. The contract also provided that “The said party of the second part is hereby given possession of the premises aforesaid and in consideration thereof said party of the second part hereby agrees to pay all state, city and county taxes and assessments of whatsoever nature which may be levie'd or assessed on the premises above described . . . Time is strictly the essence of this agreement, ... In the event the party of the second part shall have complied with all the terms and provisions hereof at the time and in the manner herein specified and upon surrender of this instrument, the party of the first part will execute a good and sufficient deed of conveyance conveying the premises herein described and furnish a certificate of title issued by a reputable title company doing business in the city of Los Angeles, showing the title then vested in the party of the first part, free and