Gold v. Phelan

JAMES, J.

This is a summary proceeding brought to obtain possession of a house and premises which plaintiff alleged she was the owner of and which she alleged defendants forcibly detained in the manner described, in section 1160 of the Code of Civil Procedure. By the judgment possession of the property was directed to be delivered to plaintiff, and it was provided that the defendants pay damages in the sum of $224.14, with costs. Prom that judgment the defendants have appealed.

The main contention urged • on this appeal is that the findings of the court are not sustained by the evidence. It appears from the testimony set forth in the record that early in the month of April, 1921, Ted Elliot was a real estate broker doing business in the city of Pasadena. There were several salesmen attached to his office. One of these, Randall, was known to the plaintiff as a customer in her husband’s store. Plaintiff was the owner of a house and lot. The house was furnished and rented to a tenant. There was a mortgage encumbrance against the property of $1,200. Plaintiff testified that she told Randall, about two months before the making of the alleged sale hereinafter referred to, to “sell the property”; that the price was $3,500, and that the conditions were that at least $1,000-in cash should be paid by the purchaser and that the re

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maining amount ($1,300) might be paid in installments of $30 per month, the purchaser to assume the mortgage indebtedness of $1,200. She testified that about the 12th of April a man named Holway, who was another salesman attached to the Elliot office, came to her place and said: “Don’t you know, Mr. Randall, he sold your house.” Plaintiff accompanied Holway to Elliot’s office, where she met the two defendants and Ted Elliot. Elliot’s office had already accepted checks from the proposed purchasers (defendants) in the amount of $1,000. At this meeting of the parties an alleged contract of sale was drawn up. This writing was awkwardly phrased and quite indefinite in many of its statements. For the purposes of this decision it may be treated as sufficiently expressing the intent of the parties and binding terms. Plaintiff and the defendants attached their signatures to the document as approving its contents, although the plaintiff testified that she could not read it as she did not know how to read. It may be assumed, however, that she was made to understand the contents of the agreement in so far as an intelligent person might be able to construe the contract. The preliminary portion of the agreement was as follows: “We, the undersigned as agents, have this date received from Grover O. Phelan and Emma H. Phelan the sum of One Thousand ($1000.00) Dollars, lawful money of the United States, being a deposit and part payment on account of a Bargain and Sale made from Bessie Gold hereinafter known as the Seller, to G. C. Phelan and E. H. Phelan hereinafter known as the Buyer, of a certain lot, tract or parcel of land lying, situate and being in the City of Pasadena County of Los Angeles, State of California, bounded and particularly described as follows, to-wit: No. 245 Penn St, Pasadena, California.” After setting forth the terms, which included the statement “$1000 cash,” the agreement proceeded to recite the following: “Seller agrees to give a good title to the hereinafter described property or no sale. Taxes for the current years to be paid by buyer. Buyer agrees to pay all assessments levied subsequent to date hereof. The deposit received this date will be deposited in escrow to the credit of said Seller. We the undersigned demand the Ted Elliot Co. of Pasadena to act as escrow agents and the Buyer and Seller agree to give said Ted