Gibbs v. Mendoza

THOMPSON (R. L.), J.

This is an appeal from a judgment decreeing specific performance of a contract to sell and convey real property.

The defendants were the owners of 320 acres of land in San Luis Obispo County, being lots 28 and a portion of lot 29, according to the subdivision map of the Morro y Cayucas Rancho on file in the office of the recorder of said county. July 22, 1925, the defendants executed and delivered to plaintiff’s assignor, J. Rohrberg, a written contract to sell said land for $100 an acre. The sum of $500 was paid by the purchaser upon the execution and delivery of the contract, and the further sum of $11,500 was subsequently paid. Upon the payment of the last-mentioned sum a deed of conveyance to fifty acres of the land was executed and delivered to the purchaser as required by the terms of the contract and he was thereupon given possession of the premises. The time for the delivery of no other deed was specifically designated. It was provided that the final payment of $20,300 should be made “on or before one year from the date of delivery of deed.” The contract provided for six per cent interest per annum on deferred payments. Time was not made the essence of the contract. Subsequent to the payment of the said sum of $12,000 on the purchase price of the property, the contract was duly assigned to plaintiff for a valuable consideration. On or about July 23, 1926, the defendants notified the original purchaser that prompt payment of the interest would be required. The assignee had no notice of this demand. On August 2, 1926, the plaintiff tendered to the defendants $20,300, the entire balance of the purchase price, together with the accrued interest, and demanded a deed of conveyance to the balance of the property, which was refused. This suit for specific performance of the contract was then commenced. The com

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plaint recited the foregoing facts, and the contract was made an exhibit thereof. It was alleged that the purchase price of the land was fair and reasonable. The answer denied the allegations of the complaint

seriatim

and declared that the instrument in question was a mere option and not a contract to sell real property and that it was breached by the purchaser by his failure to pay the interest as required. Upon trial the court rendered judgment for the plaintiff decreeing specific performance which was to be accomplished -within a prescribed time and was conditioned upon the payment of the balance of the purchase price together with the accrued interest.