Holman v. Musser (1922) · DecisionDepot

Holman v. Musser

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 23, 1922 No. Civ. No. 4341.Published

Before: Langdon

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Holding. The court held that the defendant was required under the contract to deliver a deed to the plaintiff upon the first installment payment, and his failure to do so, coupled with his declaration that the contract was at an end, constituted an abandonment that entitled the plaintiff to recover his deposit.

Issues

Whether the contract required the defendant to deliver a deed to the plaintiff at the time the first installment payment became due.
Whether the defendant was relieved of his obligation to perform due to an alleged anticipatory breach by the plaintiff.
Whether the defendant was entitled to retain the plaintiff's deposit based on the preliminary agreement.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The trial court construed the contract as requiring the defendant to deliver to the plaintiff a deed to the property at the time the first of the installment payments became due and payable.”

“Forfeitures are not favored in law and the trial court was bound to construe the contract, if possible, so as to avoid a forfeiture of plaintiff’s deposit.”

Synopsis

Ezra Cox for Appellant.

LANGDON, P. J.

This action was brought by the plaintiff to recover $500, money paid by him on a contract to purchase from defendant certain real property in Oakand, California, on the ground that the defendant had abandoned and refused to perform said contract. The contract entered into between the parties was dated November 12, 1920, and was as follows:

“Received from Everett A. Holman the sum of five hundred dollars, being deposit on account of seven thousand nine hundred dollars, United States lawful money, the pur

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chase price of the property this day sold to him subject to owner’s approval, situate in City of Oakland, County of Alameda, State of California, and described as follows, to-wit:

“House and lot located at 628 Capel St. subject however to certain repairs mentioned in letter Nov. 12th, 1920. Price offered by buyer, $7900.00; $500.00 deposit this day paid, and the balance to be paid as follows: Fifty dollars on Dec. 1st, 1920, and fifty dollars or more on the 1st of each month thereafter including interest 7%. It is further agreed that $500.00 or more shall be paid on July 1st, 1921 and $500.00 more each six months thereafter.

“10 days from date hereof are allowed Byron S. Arnold Co. in which to secure owner’s approval; 10 days additional are allowed purchaser to examine title to said property and to report in writing all valid objections thereto to Byron S. Arnold Co. at its office. If no such objections to title are so reported the balance of said purchase price shall be paid by said purchaser to said Byron S. Arnold Co. in the manner hereinabove specified, upon the delivery to said purchaser at said office of a properly executed and acknowledged grant, bargain and sale deed of said property.

“If any such objections to title are so reported sixty days are allowed seller to perfect title, and if, after the expiration of said term (unless extended by mutual consent) the title shall not have been perfected, said deposit shall be returned; otherwise said deposit shall be retained by the seller’s agent.

“Taxes for the current fiscal year shall be pro-rated as from July 1st to July 1st; fire insurance, rents and water rates shall be pro-rated as of date of the delivery of deed.

Holman v. Musser

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Synopsis

LANGDON, P. J.

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