McWhinney v. Ewers

STURTEVANT, J.

The plaintiffs commenced an action to recover a judgment for money. The defendants answered denying the allegations of the complaint. A trial was had before the trial court sitting without a jury. The court made findings in favor of the plaintiffs and from the judgment entered thereon the defendants have appealed.

The defendants assert that plaintiffs did business with them knowing that they were acting as agents of a disclosed principal. Continuing, they assert that any moneys they received were received for account of their principal and not for the account of the plaintiffs. On the first day of February, 1928, plaintiffs entered into a written agreement to purchase from the defendants as such agents a lot near the corner of Sixteenth Avenue and Aloha Street in San Francisco. The price was $9,250. At that time there was being constructed on the lot a dwelling. The record shows that at that time the Pacific Title and Trust Company held

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a trust deed dated January 13, 1928, to secure the payment of a promissory note in the sum of $4,800. That mortgage was recorded January 14, 1928. It shows also that the same company as trustee held a trust deed dated January 9, 1928, to secure another note in the sum of $2,070. That instrument was recorded later on the same day. The plaintiffs paid down $100, which is acknowledged in the contract of purchase. The contract was signed by the purchaser and by the defendants as agents of the seller, and an approval in writing was signed by the owner. Among other passages contained in the contract are the following: “Buyer to pay $500.00 down and the balance of the purchase price at $75.00 per month including interest at the rate of 6% on the first mortgage and at the rate of 7% on the balance . . . and $250.00 on or before February 21, 1929.

“Conditions of Sale: ten days from date of filing notice of completion are allowed the purchaser to examine the title to said property and to report in writing any valid objection thereto, to Ewers & Gorham at their office. If no such' objection to title is reported, the balance of said purchase price shall be paid by said purchaser at the expiration of said time to said Ewers & Gorham for account of the seller, and said seller shall thereupon deliver to said office, a properly executed and acknowledged deed of grant, bargain and sale of said property. ’ ’ Under the plain words used by the parties said contract provided that the sales price would be $9,250; that the purchasers were to pay $500 down and $250 on or before February 21, 1929. One interpretation of the. contract is that, deducting the $500 payment, the seller would cause two mortgages to be placed on the property before the transfer was made and that such mortgages would be in the total sum of $8,750, one bearing interest at six per cent and one bearing interest at seven per cent and the purchasers covenanted to pay such “balance of the purchase price at $75 per month including interest at the rate of 6% on the first mortgage and at the rate of 7% on the balance” and on or before February 21, 1929, the purchasers would pay an additional sum of $250. Another interpretation is possible and that is if no objection to the title was made within ten days after notice of completion, then the balance of the purchase price ($8,500) shall be paid by said purchaser at the expiration of said time and $250 on Febru-,