Henry v. Jones

WORKS, J.

These two actions were tried separately and they are briefed separately on the appeal. They are, however, companion eases. The evidence on the two trials was similar and the points which will dispose of the appeal are exactly the same. Such statement of facts as we find it necessary to make will apply in substance to both cases, although we shall frame our language, for clarity and convenience, as if only the first of the two, number 3846, were involved.

One J. F. McCloskey entered into a written agreement with defendant, dated June 5, 1918, whereby McCloskey agreed to sell and defendant agreed to buy a parcel of real property. The following portions of this agreement are material to the present controversy: “The purchase price . . . is $51,300.00, . . . which” Jones “agrees to pay ... as follows: Five Thousand Dollars on the date hereof, receipt whereof ... is hereby acknowledged: Twenty-three Thousand Eight Hundred Dollars,” as early, under certain conditions, as November 1, 1918, but not later than January 1, 1919; “and the balance of said purchase price, to wit: The sum of Twenty-two Thousand Five Hundred Dollars by note and mortgage as hereinafter stipulated. Upon the payment of said second installment of” $23,800 “and the execution and delivery of said note and mortgage ...” McCloskey “agrees to execute and deliver to” Jones “a deed conveying to him the said real property free and clear of lien or

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encumbrance and to furnish to him an abstract or certificate of title thereto; provided that said deed shall be executed immediately and placed in escrow in a bank at Santa Maria with instructions to deliver same upon the performance of such conditions and the abstract or certificate of title shall be furnished for examination at the earliest convenient date; and” Jones, “simultaneously with the delivery of said deed and as a condition thereto shall execute and deliver to” McCloskey “his promissory note for the principal sum of” $22,500, “. . . which said promissory note shall be secured by a mortgage constituting a good and sufficient first lien upon the premises.” On June 12, 1918, McCloskey executed to one Viah his certain order, directed to Jones, as follows: “Pay to the order of V. S. Viah Seven Hundred, eighty-seven 50/100 Dollars, Value received, and charge the same to account of above [?], to be paid when final payment of $22,500.00 is made on my ranch. ’ ’ Viah presented this paper to Jones and it was by the latter accepted. It is conceded that the payment referred to in the order was the payment of $22,500 mentioned in the agreement from which quotation is above made. Plaintiff became the owner and holder of the order, which defendant has never paid, nor has he ever made any payment on the real property described in the agreement for purchase and sale between him and Mc-Closkey, except the initial payment of $5,000, nor has he ever delivered the note and mortgage mentioned in the agreement. This action was commenced for the purpose of recovering on the order. Judgment went for plaintiff and defendant appeals.