Hay v. Casey

HART, J.

On February 13, 1909, a written agreement was entered into between the parties to this action, by the terms of which appellants agreed to sell and respondent agreed to buy, for the sum of seven thousand five hundred dollars, certain real property, in the city of Marysville. Nine hundred dollars was paid by respondent at the time of the execution of the agreement, the balance being payable in monthly installments. In addition to the first payment of nine hundred dollars, plaintiff claims to have paid nine hundred dollars, and defendants admit receiving eight hundred dollars, but whether during the life of said contract or under

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a succeeding one does not clearly appear. On the 4th of March, 1910, a second contract was entered into for the sale of the property, at a consideration of $5,893, payable in installments. Default being made by plaintiff in all or some of these payments, on May 23, 1910, a third contract was executed, the purchase price being specified as $5,916. On this contract also default was made by plaintiff.

On October 22, 1910, appellant, Martin B. Casey, as party of the first part, J. Boss Traynor, as party of the second part, and respondent, Joe Hay, as party of the third part, entered into a written agreement by which said Traynor was given a thirty-day option to sell said property for the sum of eight thousand dollars, and appellant, Martin B. Casey,' and respondent therein agreed that the contract of May 23, 1910, “shall be and hereby is canceled and declared null and void. ... In consideration of which said party of the first part agrees to pay said party of the third part,” out of said eight thousand dollars, the sum of one thousand eight hundred and fifty dollars, less certain bills for lighting, water, taxes, etc. “In the event said eight thousand dollars be not paid in accordance with this agreement said party of the third part shall receive nothing and shall have no further right, title, claim, or interest in or to any part of said land, premises, or personal property.”

In each of the above-mentioned contracts time was made of the essence.

On January 25, 1911, appellants entered into an agreement with one T. J. Tyrell for the sale of said property for the sum of six thousand dollars, and, on April 21, 1911, pursuant to said contract, the property was deeded to one Barney Van Buskirk.