Bradford v. Sunset Land & Water Co.

SHAW, J.

Action to recover money paid pursuant to the terms of an option contract for the purchase of real estate. Judgment went against plaintiff, whose motion for a new trial was by an order of court denied, and from which order he prosecutes this appeal.

On January 24, 1912, defendant, a corporation, executed a written document giving to plaintiff an option to purchase the property therein described. The portion of the agreement material to this inquiry is the following:

“Received of S. P. Bradford the sum of five hundred dollars ($500), same being a deposit and part payment on account of purchase price for all those certain parcels of land situate in the county of Orange, state of California, described in deed from Sunset Beach Company, a corporation, to Sunset Land & Water Company, a corporation, recorded July 6th, 1904, in book 108 of deeds, at page 48, records of said county, excepting therefrom those certain lots or parcels of land designated sold on the plat of Sunset Beach hereto annexed and made a part hereof, together with all fixtures and improvements thereon, also all bills and accounts receivable and other personal property now owned by said Sunset Land & Water Company. Said property having this day been sold to said S. P. Bradford for the sum of forty-five thousand seven hundred and fifty dollars ($45,750) ; the balance thereof being payable in the amounts and at the times following, to wit: $500 on or before May 1, 1912, $500 on or before June. 1, 1912; $44,250 on or before August 1, 1912. Upon completion of the payments aforesaid and the faithful performance of the covenants herein imposed, the seller will execute and deliver good and sufficient conveyance conveying said property to the purchaser, clear of encumbrance, excepting ... If the purchaser shall fail to make any of the payments as and when specified above, or shall fail to perform any or all of the covenants herein imposed upon him, this option shall thereupon cease and determine and the seller shall be released from all further obligations hereunder, time

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being of the essence of this agreement, and the seller may retain all sums theretofore paid hereon, the same being fixed as the consideration and in full compensation for the option hereby granted. ...”

In accordance with the terms of the option, plaintiff paid to defendant five hundred dollars on or before May 1, 1912, and five hundred dollars on or before June 1, 1912, which, together with the first payment, made one thousand five hundred dollars for the recovery of which this suit was instituted; but he neither paid, nor did he ever at any time tender or offer to pay, the sum of $44,250 required by said instrument to be paid on or before August 1, 1912. By reason of this default respondent, by virtue of the provisions of the contract, was not only released from all obligations to sell, convey, or transfer the property described in the contract, but, as provided therein, entitled to retain the one thousand five hundred dollars so paid by-plaintiff, which by the terms of the agreement was “fixed as the consideration and in full compensation for the option . . . granted.”