Leak v. Colburn

[785]

FINCH, P. J.

The plaintiff recovered judgment declaring forfeited his agreement to sell certain real property to the defendant and restoring the plaintiff to the possession thereof.

Prior to the execution of the agreement the plaintiff had conveyed the property to the defendant for the sum of $2,200, a part of which had been paid. For reasons not material and concerning which the parties are not in agreement, the defendant reeonveyed the property to the plaintiff and the contract in question here was executed, by the terms of which the plaintiff agreed to convey the property to the defendant upon payment by the latter of $1,620.80 in installments of $15 a month, with interest at seven per cent per annum, payable annually. The agreement was dated October 19, 1917. The defendant made the payments up to and including that of July, 1918, but he paid no interest due under the contract. He claimed credit for the additional sum of $109.75 paid for the plaintiff’s benefit. This claim need be given no further consideration, however, because its allowance would leave him still in default on January 28, 1920, when the complaint was filed.

The appellant contends that he was entitled to a credit of $500 as his share of the proceeds of a sale, alleged to have been made by the plaintiff, of twenty acres of land described as lot 5, in which the defendant claimed an interest. By written agreement between the parties dated October 23, 1917, the plaintiff agreed to pay the defendant $500 when the former sold lot 5. The agreement contained the following: “This agreement is binding for one year from date and if the ranch is not. sold within one year from date this agreement is null and void, and all interest of the party of the second part is canceled if the ranch is not sold within said time. ’ ’ This agreement was one-sided in that it imposed no obligation upon the plaintiff to sell the land within the year and left it within his power to wholly defeat whatever interest the defendant had therein by failing to sell the land during the time specified. The appellant contends and respondent denies that lot 5 was so sold.

The plaintiff owned an adjoining twenty acres described as lot 4. December 14, 1917, he entered into two written agreements with Florence V. Cheney. By the first he agreed to sell her lot 4. The second was in the form of a lease to