Gondolfo v. Garbarino

COOPER, P. J.

This appeal is from the judgment and the order denying plaintiff’s motion for a new trial. The complaint alleges that the defendant agreed to sell to plaintiff an mdivided one-fifth interest in and to certain vegetable gardens known as the “Stagnaro Gardens,” near the Six-mile House in the city and county of San Francisco, for the sum of $300, and the plaintiff paid to defendant $100 on account of such purchase price. That plaintiff has tendered the balance of the purchase price, but that defendant has at all times refused to accept the balance of $200, or to convey the interest to plaintiff as he agreed. Judgment is prayed for $1,500 for breach of the alleged contract.

[548]

The answer alleges by way of affirmative defense that at the time of the agreement to sell, the said vegetable gardens were partnership property and owned by the following partners, to wit: Emanuele Stagnaro, Giovanni Queirolo, B. Costa, Giacomo Bargagliotti, Fortunato Gotelli, Giovanni Garbarino, Davide Gondolfo, Stef ano Ghiorso and Marco Ghiesa. That the agreement to sell was made upon the express condition and understanding that the other partners should consent and agree to the said sale, or it should not be binding upon defendant, and that the other partners of defendant refused to consent to such sale. That the defendant, upon ascertaining that his partners would not consent to such sale, tendered to plaintiff the $100 that had been paid to him, and that plaintiff refused to ^ceept it.

The case turned upon the question as to whether or not the agreement to sell was conditional upon the consent of the other partners being obtained. The court found as follows: “3. That on said 20th day of May, 1906, defendant agreed to sell to plaintiff and plaintiff agreed to purchase from defendant, one-fifth of the vegetable garden and other property described in paragraph 1 of the complaint herein for the sum of three hundred dollars, upon the express condition, however, that the other partners, owning seven-tenths of said vegetable garden and other property (as set forth in finding No. 1) should consent and agree to the sale of defendant’s one-fifth interest therein to plaintiff. ... 5. That the partners of plaintiff and defendant have refused to consent and agree, and did not and do not consent and agree to the transfer or sale of .defendant’s interest in said vegetable garden and property described in paragraph 1 of the complaint herein to plaintiff. ”