Brown v. Roberts

SPENCE, J.

This actionwas instituted by the sellers to compel specific performance of a contract to purchase certain real property. It was thereafter dismissed as to the defendant bank, which was the escrow-holder. From a judgment in favor of plaintiffs and against defendants C. J. Roberts and C. A. Draper, said defendants appeal.

Escrow instructions were signed by plaintiffs and defendant C. J. Roberts on March 1, 1927, and these instructions

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and accompanying instruments constitute the agreement between the parties. The instructions given by defendant Roberts recite the direct payment of $140 to plaintiffs, the delivery of $400 in cash to the escrow-holder, together with a promissory note in favor of plaintiffs in the sum of $2,350, signed by defendants Roberts and Draper and payable sixty days from date with interest at seven per cent. The escrow-holder was instructed to use the money and note provided it could secure a guarantee or certificate of title from any one of several designated title companies showing the title to the property described in defendant C. J. Roberts, free of encumbrances with the usual exceptions, and further excepting a “trust deed of record securing note for $2,500.00 on which there is an unpaid balance of $2,110.00”. The escrow-holder was further instructed to procure “municipal certificate showing above property free from municipal liens”. Time was declared to be of the essence and the escrow-holder was instructed to return the money and instruments if unable to comply with the instructions within thirty days. Plaintiffs indorsed on said instructions their approval of “the conditions as above” and their instructions recited the delivery to the escrow-holder of their deed conveying the property to defendant C. J. Roberts, said deed to be delivered upon the payment of “the sum of $400.00 and note for $2,350.00 shown above within the time as above provided”.

On March 9th the bank informed defendant C. J. Roberts that the title company had stated that there was a judgment against one Charles Roberts and requested sufficient information to satisfy the title company that defendant C. J. Roberts was not the party involved in the judgment. Defendant Roberts called at the bank, stated that there was no judgment against him, and although he expressed a willingness to sign an affidavit as requested by the title company, he did not return to the bank to do so. The title company further reported, in the early part of March, that the property was subject to an assessment bond in the sum of $100.43. The bank notified the parties about this bond and plaintiff William Brown discussed the matter with defendant Roberts and offered to pay the bond off or to let defendant Roberts assume it. Defendants Roberts stated that “It doesn’t make any difference, I don’t intend to keep the lot anyway.”