Peschong v. Madden

HAHN, J.,

pro tem.

The action which gives rise to this appeal is one wherein plaintiffs, as huyera of certain real property, sought to recover from the defendants, one of whom was the owner of the property and the other the agent of the owner, a judgment for the sum of $300 paid on account of the purchase price. From a judgment in favor of plaintiffs for the sum of $300, as prayed for, the defendants appeal.

On the lot in question, at the time the negotiations for its sale and purchase were consummated, a house was in the course of construction under the direction of defendant Gordon W. Madden, who was the agent and son of defendant Alice M. Madden, owner of the property. The negotiations for the purchase were concluded ón or about March 27, 1924, and escrow instructions were signed and filed with

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the escrow agent, the Venice City Bank, on or about March 31st. These escrow instructions, among other things, provided that the purchase price of the property was to be $7,250, which sum was to be paid as follows: The sellers were to place a first mortgage lien on the property for the sum of $3,400, which the buyers were to assume and pay. In addition, the buyers were to execute their promissory note for $2',350, payable to' Alice M. Madden, the owner, and also a trust deed securing vhe same, which would be placed on the property as a second lien. The balance of the purchase price, to wit, $1500, was to be paid in cash. Four hundred dollars of that sum was paid at the time of or prior to the signing of the escrow instructions, and the remaining $1100, according to the escrow instructions, was to be paid “on demand.” There was no provision in the escrow instructions as to when the building in course of construction was to be completed; but the escrow instructions did contain a clause which reads as follows: “Possession to be given upon completion of buildings.” The instructions further- contained a clause providing for the closing of the escrow within sixty days from the date thereof; but it was therein provided that in the event the escrow was not completed within that time, the same might be continued until either party gave notice to terminate it.

Plaintiffs in due course executed the $2,350 note and trust deed and delivered the same in escrow, but they never did pay into escrow, or to the sellers, the $1100 in cash, or any part thereof, which the escrow instructions provided was to be paid “upon demand.”