Regalia v. Mariani

THE COURT.

The above two actions wherein Fillipio Regalia is plaintiff and respondent and Tony Mariani is defendant and appellant in one and in the other Tony Mariani is plaintiff and appellant and Fillipio Regalia is defendant and respondent, were consolidated in the lower court and tried together and a single judgment entered, the court adjudging that Fillipio Regalia have and recover from Tony Mariani the sum of $1500, together with interest and costs, and that a contract entered into between the parties be rescinded, canceled and delivered up to Fillipio Regalia, and that Tony Mariani have and recover from Fillipio Regalia $300 as rent for the use of certain premises. The appellant has appealed from that part of the judgment wherein the court adjudged that Fillipio Regalia have rescission of the agreement of purchase and sale, and the return to him of $1500; that Tony Mariani has not sustained damages and that Fillipio Regalia is entitled to costs.

Respondent Regalia brought an action against appellant Mariani asking for the rescission of an agreement of purchase and sale of a certain restaurant business and the personal property used as equipment therein and the return of $1500, the purchase price paid. Some three months after this action was filed appellant Mariani commenced an action against respondent Regalia in unlawful detainer, claiming respondent was in default in the payment of rent.

Respondent paid to appellant, who was the owner of the restaurant in question and the building in which it was being conducted, located at 2042-2044 Seventeenth Street in the city of San Francisco, the sum of $1500 as the consideration of the purchase price of the restaurant business; the personal property used in and about such premises and busi

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ness, and an agreement to lease to him the premises. Prior to filing the action for rescission respondent duly served a notice of election to rescind the agreement, concerning the validity of which no point is made.

The agreement, which was signed by respondent and appellant, is as follows: “May 28, 1927. Received of Fillipio Regalia the sum of one hundred ($100.00) dollars as deposit on purchase of restaurant located at No. 2042 and 2044 Seventeenth Street, total purchase price fifteen hundred ($1500.00) dollars. Vendor is Mr. Tony Mariani. It ig understood sale is to be consummated by June 4, 1927, but vendor, Tony Mariani, may rescind this contract on or before that date by refunding the said deposit of one hundred ($100.00) dollars. Rent of seventy-five ($75.00) dollars per month is to be paid on the first of each and every month and if not said contract is to be considered terminated and said purchase price of fifteen ($1500.00) hundred dollars is to be retained by vendor, Tony Mariani, and said vendee Fillipio Regalia is to remove from said premises. Sale includes all furniture, fixtures, dishes, cooking utensils, etc. A lease of three (3) years at seventy-five (75.00) dollars per month is to be entered into by said vendor and said vendee with option on part of said vendee to renew said lease for an additional two years. If said vendor refuses to sell by said June 4, 1927, he may not sell to any other party, except he give to said vendee an additional two hundred ($200.00) dollars. Vendor may- retain said restaurant for himself, however.”