Elrod-Oas Home Building Co. v. Mensor

THE COURT.

An appeal by plaintiff corporation from part of a decree quieting its title to certain real property and adjudging that defendants recover amounts paid on the purchase price of the property and expended for improvements thereon, less the value of the use of the property.

On October 1, 192'6, plaintiff by its agent, Mack Realty Service, Inc., entered into a written agreement to sell the property, upon which was situated a dwelling-house, to defendants—who are husband and wife—for $9,300. On the date of the execution of the contract defendants paid on the purchase price the sum of $200.

The material provisions of the contract are as follows:

“ . . . The balance of the purchase price is to be paid within fifteen days from date hereof as follows, to wit, a note to the amount of $200.00 payable ten months from date at seven per cent interest, the balance of $8,900.00 to be carried on first and second deeds of trust. The payments are to be $65 a month including interest at seven per cent per annum; and it is hereby agreed, first, that in the event said purchaser shall fail to pay the balance of said purchase price or complete said purchase as herein provided the amounts paid hereon shall at the option of the seller be retained as liquidated and agreed damages.

“ (Second) That in the event the title to said property shall not prove merchantable, and said seller shall not perfect or be able to perfect the same within a reasonable time from this date, the purchaser shall have the option of demanding and receiving back said deposit and shall be released from all obligations thereunder;

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“(Third) That the evidence of title is to be in the form of a deed issued by responsible title company and to be furnished and paid for by the purchaser . . .

“(Fifth) That the taxes for the current fiscal year ending June 30 following this date, and the insurance, rents and other expenses of said property shall be pro-rated from date of delivery of deed . . .

“(Sixth) Time is of the essence of this contract but the time for any act required to be done may be extended not longer than thirty days by Mack Realty Service Inc.”