Brady v. Fowler

RICHARDS, J.

The plaintiffs brought suit against the defendants to recover from them an amount alleged to be due under the terms of a. written instrument claimed by plaintiffs to be a lease with option to purchase, and relating to certain real property in the city of Los Angeles. The defendants denied any liability, claiming in their answers that the writing in question was not a lease with option to purchase, but an option merely, which, by its lapse, had terminated any further liability on their part. The immediate parties to said instrument were the plaintiffs and defendant R. A. Fowler, and the latter, after complying for some time with the terms of the instrument, assigned it to his codefendant, Herbert J. Goudge. In its findings of fact the court established the character of this instrument in accordance with the contention of the defendants, and found that it terminated on December 1, 1914, through the nonpayment of a certain sum due to the plaintiffs on that date, and being one of a series of monthly payments re

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quired to keep the option in force. The court further found that the writing also imposed upon the holder of the option thereunder an obligation to pay city, county, and state taxes upon the property concerned, and that up to and including the time when the option terminated by the nonpayment of the monthly installment called for there was due as such taxes the sum of $1,306.94, and rendered judgment in favor of the plaintiffs and against each of the defendants for this amount.

Bach of the defendants has appealed from the judgment. The record before this court consists of the judgment-roll alone, and the court’s findings are set out more at length in the opinion of this court filed this day in the plaintiff’s appeal from the same judgment and being numbered Civil No. 3177. For the purpose of the appeals now being considered, however, the brief reference to the findings already made is sufficient.

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The first contention in support of the appeal, and which is made by each of the appellants, is that, inasmuch as the court found that said option lapsed on December 1, 1914, there was no obligation upon them to pay taxes due upon that date, citing authorities to the effect that the person to whom an option is given is under no obligation to avail himself of it, and if he permits it to lapse by the nonfulfillment of its conditions, it is at an end and fully discharged, and they argue that it is illogical to hold that the option was terminated by the failure of its holder to pay the monthly sum due on December 1, 1914, and at the same time to hold him responsible for the payment of taxes due on that date. This argument derives whatever force it has from the appellants’ assumption that the finding of the court is that the taxes in question