Joy v. Rousseau

PLUMMER, J.

This action was begun to secure judgment for the sum of $7,035.28 on account of interest accrued on a certain contract of sale of real property from the last prior interest date to the date of the assignment of the contract of sale, said sum being claimed as the pro

rata

to which the plaintiffs were entitled out of payments aggregating the sum of $15,000. The record discloses the following: On or about March 8, 1918, one Charles M. Pusey, being the owner of a certain vineyard situate in the county of Fresno, contracted with Alfreda Verwoert for the sale thereof for the sum of $123,000, payable in installments. On the thirtieth day of July, 1919, the said Verwoert agreed to sell, subject to the first-named contract, the same real property to George Noroian for the sum of $200,000, payable in installments. On or about August 12, 1920, the said George Noroian, by an instrument in writing agreed, subject to the previous contracts, to sell and convey the same

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property to the Planters Company, a corporation, for the sum of $365,000, payable partly in cash, the remainder in installments. Thereafter and prior to the transactions had with the defendant herein, the said George Noroian transferred his interest in the agreement herein referred to and the profits to be received therefrom to the plaintiff Richard A. Joy. Thereafter, and on or about the seventh day of April, 1921, the said Richard A. Joy sold and transferred to the defendant Arthur P. Rousseau, all and singular, his interests in and to said lands and premises, the contract relating thereto and the profits to be realized therefrom. In the agreement executed between the plaintiffs and the defendant there appears the following: “In consideration of the payment and agreements herein contained by said party of the first part, said parties of the second part agree to transfer and assign by good and sufficient instruments, such as may be required by counsel of the party of the first part, all the right, title and interest of George Noroian, and his wife derived by. them under said agreement dated July 30th, 1919, and all the benefits to be derived by said George Noroian and his wife pursuant to said agreement of August 12th, 1920, hereby guaranteeing that such interests shall be in accordance with the repre sentations herein contained and shall be subject to the provisions of said agreements of March 8th', 1918; July 30th, 1919, and August 12th, 1920, and subject to a prorating of interest on said last-named agreement as of this date to be adjusted when interest is received.” Thereafter, and during the months of August and September, there was deposited with the French-American Bank, to the credit of the defendant, Arthur F. Rousseau, the sum of $5,000, by one E. T. Foley, to which the Planters Company had assigned the crops growing on the premises covered by the agreement to that value, with the direction to deposit the same to the credit of the defendant. After learning of the deposit of said sums to the credit of the defendant, the plaintiffs demanded of the defendant payment of interest on the assigned contract, calculated up to the date of the assignment thereof, claiming that the contract provided for such payment. The defendant alleging that he had received no amounts as interest, declined payment, and ‘thereupon the plaintiffs instituted this suit and recovered