Peloian v. Waldman

WASTE, P. J.

The plaintiffs brought this action in

assumpsit

to recover one thousand dollars' alleged to have

[117]

been received by the defendant for their use. The defendant answered, denying the indebtedness, and by way of a further defense set up a contract for the purchase and sale of real estate, entered into by the plaintiffs, the payment of one thousand dollars as a deposit and part of the purchase price, the violation of the terms of the agreement on the part of the plaintiffs, and the retention by defendant of the one thousand dollars as liquidated damages because of the breach of the contract. The lower court found the facts to be as alleged in the answer, except that it determined that it was the defendant who breached the agreement for the purchase of the real property, and that it was he who had not performed the conditions of the contract. It held that plaintiffs were entitled to recover the money paid, and entered judgment accordingly. Defendant has appealed.

The facts upon which the court based its decision are few and without apparent conflict. On December 20, 1919, through the medium of a real estate agent, the plaintiffs entered into an agreement with the defendant for the purchase by them from him of twenty acres of land in Fresno County, together with sundry personal property, for the sum of twenty-one thousand dollars, one thousand dollars of which was paid in cash, the receipt of which was acknowledged by the defendant, the balance to be paid in accordance with the terms of the memorandum of agreement prepared by the real estate agent, which was in writing, approved and accepted by both plaintiffs and defendant. The memorandum called for a further payment of three thousand five hundred dollars and a note for one thousand dollars, on delivery of a contract setting forth certain covenants and conditions upon which the sale was to be made, and provided that a contract for a deed in the usual form, .and containing the usual clauses, warranties, and covenants between the vendor and vendees, should be executed. The contract was also to provide that the payments for the land should be made by the retention by the vendor of sixty per cent of all crops produced on the land until such time as the balance of the purchase price, fifteen thousand five hundred dollars and interest, should be paid.