Steele v. Guaranty Realty Co.

ALLEN, P. J.

Appeal by defendant from a judgment in favor of plaintiff rendered by the superior court of Los Angeles county, and from an order denying defendant’s motion for a new trial.

Plaintiff and defendant, on July 7, 1905, entered into the following contract:

“Mrs. M. Steele has this day deposited with Guaranty Realty Company, of Ocean Park, Cal., twenty-five dollars, as part of the first payment on the purchase of lot 10, block 15, of the Silver Strand tract, Los Angeles County, California. Purchase price, $1600. Balance of said first payment amounting to about $875, to be paid within 5 days from date, when contract of purchase is to be delivered. If said contract cannot be procured this deposit is to be returned, and if the balance of said payment is not paid, the deposit is to be retained in payment of commissions and for services rendered.

“Date July 7.

“Names:

“G. R. CO. (G.)

“M. STEELE.”

Pursuant thereto plaintiff paid defendant the $875 specified within the time required. Defendant never delivered a contract of sale for the lot described other than one theretofore executed by the owners with one Albright, by which the premises were to be conveyed subject to such limitations and reservations as to substantially encumber the title. Before the tender of the assigned contract, defendant informed plaintiff that it-had resold the contract agreed to be delivered to plaintiff at an advance, and that the proposed purchaser had forfeited $50 paid on such contract of resale, and defendant accordingly paid to plaintiff one-half of such forfeiture. Thereafter, defendant delivered to plaintiff the contract made by the owners of the lot with Albright and by Albright assigned; but upon examination and discovery of the limitations and reservations therein, plaintiff refused to accept the same, and brought this action to recover the money paid defendant under the agreement. Judgment went for plaintiff for the

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money so paid, less $25 theretofore received by her from defendant.