McCarthy & Myer v. Bank of Italy

CONREY, P. J.

On or about the twenty-first day of February, 1921, the defendant Mina, as tenant of the plaintiffs, went into possession of a certain meat market with its fixtures and equipment, at 1102 West Seventh Street, in the city of Los Angeles, and continued in possession thereof during' a period extending some months beyond the thirty-first day of August, 1921. Said entry was made under a written lease for a term commencing on said date of entry and ending on the thirty-first day of August, 1921, at a monthly rental of $70. On or about the tenth day of May, 1921, the plaintiffs sold said meat-market fixtures and equipment to the defendant Mina for the agreed price of $2,600, of which sum said Mina then paid $150; it being further agreed that leases should be executed as hereinafter stated.

Said sale was made subject to the terms of their agreement as contained in escrow instructions on said tenth day of May delivered by the plaintiffs and Mina to the defend

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ant Bank of Italy. Said escrow instructions were signed by Mina and at the same time were accepted and approved over the signature of the plaintiffs. The agreement as contained in said escrow instructions provided for the payment of the unpaid balance of the purchase price, amounting to $2,450, as follows: Mina delivered to the bank the sum of $1,850 and a promissory note payable to the plaintiffs in the sum of $600. The bank was instructed that it was to hold said money and said note until August 31, 1921, or before said date, provided the following conditions were complied with. The bank was instructed to hand said money and note to the plaintiffs when the plaintiffs delivered to the bank, for Mina, a bill of sale to said fixtures and equipment of the meat-market stall and also a lease to said stall and market premises for the term commencing February 21, 1921, and ending August 31, 1921, at the stated rental, and when they further delivered to the bank for Mina, a lease to said meat-market stall and premises commencing August 31, 1921, for the period of two years at a monthly rental not exceeding $70 per month, “which said new lease shall also carry a renewal option for two or three years from and after August 31, 1923, at a rental to be mutually agreed upon. The understanding of the undersigned being that said purchase price of $2,600 be paid to said McCarthy & Myer, if on or before August 31, 1921, they obtain for and deliver to the undersigned lease to said market stall and premises for at least two years, and possibly five years to said premises, commencing on August 31, 1921. Should said lease, commencing August 31, 1921, for the term of two years or longer, at a rental of $70, be not so delivered for the undersigned the above said money is to be returned to the undersigned.’’