Teague Investment Co. v. Setchel

[665]

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor in an action brought by it to recover the sum of $5,784, with interest, costs, and counsel fees, alleged to have become due said plaintiff by reason of defendant’s failure to perform the terms of a certain contract for the purchase from said plaintiff of certain real estate.

The facts of the case are briefly these: On December 1, 1913, the plaintiff and defendant entered into an agreement in writing for the sale by the former and purchase by the latter of a certain tract of land in the county of Fresno for the sum of $6,603, of which sum $818 was to be paid in cash and the balance in a series of installments of five hundred dollars a year for the period of three years, at the end of which time the balance remaining due was to be paid. The purchaser was to receive, and in fact did receive, possession of the property at the date of said agreement, and he was thereafter to pay all state, county, and school taxes assessed against said land. By the terms of said agreement the seller, upon receiving from the purchaser the .payments provided for therein, was to execute and deliver to the purchaser a good and sufficient deed conveying the premises in question free and clear from all encumbrances except as it might be subject to certain rights of way for ditches, roads, and electric power lines which had theretofore been created in relation to said property; and should also furnish to the purchaser a certificate of title to the same.

The defendant did not make any of the payments of the several installments due or to become due upon said agreement, and did not pay any of the taxes which were assessed against said property, but some time after the agreement was made and after he had entered into possession of the premises the defendant claimed to have discovered that the plaintiff had sold certain other property in the larger tract of which the premises in question were a part for a less sum per acre than that which was provided for in his contract for the purchase of said premises, and this, he claimed, was in violation of an oral agreement and understanding between the parties forming an inducement for the entering into said contract, to the effect that the plaintiff would not offer for sale or sell any portion of said larger tract of land for a less rate than $150 per acre; and that having sold to other parties a large portion of said tract for a sum less