Stevens v. Los Angeles Dock & Terminal Co.

ALLEN, P. J.

The action was one brought by plaintiff against defendant for the specific performance of a contract for the purchase of real estate. The contract, made a part of the complaint, was entered into by defendant as party of the first part and W. B. Redburn & Son and plaintiff of the second part, the same being an agreement to sell and convey to the parties of the second part certain described premises consisting of a large number of lots in a tract called the “Back Bay Tract No. 1,” being a subdivision of certain lands in the city of Long Beach. The consideration price named for the lots was $31,850, $12,740 being paid at the date of the signing of the agreement, $9,555 being payable on or before the fifteenth day of July, 1906, and the balance of $9,555 on or before the fifteenth day of January, 1907, with six per cent interest upon deferred payments, payable semi-annually. The agreement contained the usual clause providing that if default be made in any of the payments, or in any of the covenants and conditions of the contract, the whole should become due and payable and the first party given the right to cancel the contract, re-enter and take possession of the premises and retain all moneys paid as rent for the use and occupation of such premises. It was further agreed that when all of the payments were made a deed should be given conveying a good and sufficient title to the property, free and clear of all encumbrances. It was further

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agreed that the first party should fill said land and raise it to a uniform height of at least three feet above its present elevation, or to such other height as first party might desire, not exceeding ten feet; that the first party should grade all streets in said tract, and put in cement curbs and sidewalks. Time was made the essence of the contract. Attached to such contract and a part thereof was a further agreement between the parties to the effect that if the improvements agreed to be put upon said premises by. the first party were not completed within one year, second parties should be exonerated from the payment of interest for six months upon the third payment, and in case the improvements were not completed at the end of eighteen months the third payment should not be required. It is alleged in the complaint that 'thereafter a partition was effected between the parties of the second part by which certain of the lots were apportioned to Red-burn & Son in lieu of their interest in the contract, and certain other lots apportioned to plaintiff, those apportioned to plaintiff being the lots described in the complaint and with reference to which specific performance is asked; that defendant had conveyed to Redburn & Son their apportionment of the lots; that plaintiff had made all payments required of him by the contract other than the payment specified as becoming due on the fifteenth day of January, 1907; and further alleging that none of the improvements had been placed upon said' property, as specified in said contract, within the eighteen months mentioned; that plaintiff has performed all of the conditions and covenants required of him to be performed by the agreement; that said agreement was just, fair, and reasonable, and the waiver of the third payment for said lands, in case said improvements should not be completed within eighteen months from January 15, 1906, was fair and reasonable and was part of the consideration of such agreement, and was fair and adequate and was made for the purpose of inducing plaintiff to enter into said agreement with said defendant, and the enforcement of same is fair and reasonable and not to the undue advantage of either party, and that said consideration was not disproportionate to the value of said lands. There were further allegations of damage resulting from the nonperformance of the conditions of the contract upon the part of de