Bertola v. Allred

RICHARDS, J.

This is an appeal from a judgment in plaintiff’s favor for the sum of five hundred dollars in an action brought by her to recover from the defendants said sum for their alleged failure to perform the terms and conditions of a contract for the sale to said plaintiff of certain real estate.

The cause was tried before a jury, and the facts of the case upon which the jury rendered their verdict in the plaintiff’s favor were briefly these:

The plaintiff, being desirous of purchasing a residence in Ingleside Terrace tract, in the city and county of San Francisco, saw an advertisement in a paper to the effect that the defendant, W. W. Kirby, had houses to sell in said tract. She called upon Kirby, who introduced her to the defendant Allred as his principal, and together they went to view the premises. The plaintiff, who was a physician, informed the defendants that she desired to use the premises if purchased for her residence and also for an office for the practice of medicine. She was shown at the time certain building restrictions imposed upon the tract at the time of its original subdivision, which provided “that no building or structure except a dwelling-house, or appurtenances thereto, designed to accommodate one family only, or which shall be used exclusively as a dwelling-house, and not more than one such building upon any one lot, shall at any time be placed upon

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the above-described real property,” and which further provided “that said real property shall not at any time be used for any purpose other than residential purposes. She inquired whether these building restrictions would be applied to the practice of medicine and was assured by both defendants that they would not. A few days later a written contract for the purchase by the plaintiff of said premises was prepared and presented to her for signature. It called for an initial payment of five hundred dollars, and provided among its several terms that fourteen days from the date thereof were to be allowed the purchaser to examine the title to the property and to report in writing all valid objections thereto to the defendant Kirby, which objections when so reported the defendants were to have ninety days to remove. The defendant Kirby, who acted throughout as the agent of the defendant Allred, was by the terms of the contract expressly authorized to extend the time for the examination of the title and for the making of objections thereto for a period of not to exceed thirty days. Upon reading this contract the plaintiff saw that the word “office” therein had been erased and the word “study” inserted, and upon objection to this change was assured that said change would be sufficient to avoid the restrictions and that everything would be all right. On October 10, 1918, the plaintiff signed said contract, but presently learned that its terms were not sufficient to so effect the restrictions upon the use of the property as to enable her to maintain an office thereon. She had several interviews within the next few days with both of the defendants, who repeatedly assured her that the objections would be removed. On October 23d she was called to attend the defendant Kirby professionally, he being confined to his bed with influenza, and she then talked with him about the removal of the restrictions, and he orally agreed with her that the time for making her objections to the title should be extended in order to enable himself and his principal to accomplish the removal of the restrictions to her use of the property in part for office purposes. She also on the same day saw the defendant Allred, who assured her that the restrictions would be removed. On the following day she wrote to the defendant Allred a letter in which, among other things, she stated that “Our agreement to extend the time of final adjustment, as the