Brady v. Fowler

RICHARDS, J.

Appeal by plaintiffs from a judgment in their favor for the sum of $1,306.94. The appeal is taken upon the judgment-roll alone, and from the facts found by the court it appears that the plaintiffs, husband and wife, on October 1, 1912, entered into a written agreement with the defendant R. A. Fowler, by which they granted to Fowler an option to purchase certain real property situate in the city of Los Angeles for the sum of one hundred and ten thousand dollars, the latter agreeing until the exercise by him of said option during the term of the agreement to pay to the plaintiffs on the first day of every month the sum of $550, these payments aggregating annually the sum of six thousand six hundred dollars, and being six per cent

[590]

upon the said purchase price. Said agreement or option also provided that Fowler should pay all taxes assessed upon the property during the term of the option. This writing was variously referred to therein as a “lease and option” and a “lease or option,” and much of its verbiage was evidently taken from the form of a lease pure and simple. In the month of July, 1913, the defendant Goudge, desiring to succeed to the interest of Fowler under said agreement, but not being willing to do so if it should be claimed by the plaintiffs that it created as between the parties to it the relation of lessors and lessee, the plaintiff J. L. Brady and defendant Fowler on July 12, 1913, entered into what is termed in the complaint and findings a “memorandum of auxiliary agreement,” the terms of which, however, are just as, if not more, ambiguous than those of the instrument that it purported to clarify. Said plaintiff received from Fowler the sum of one thousand dollars for entering into this auxiliary agreement, and the court finds that it was entered into for the purpose of satisfying Goudge that the original agreement of October 1, 1912, was an “option to purchase and not a lease,” and that it was mutually understood between plaintiff J. L. Brady and the defendants at the time said auxiliary agreement was executed that the original agreement and the auxiliary agreement together constituted an option to purchase and not a lease, and that the monthly installments of payments "of $550 were intended to be paid as interest on an option purchase price of one hundred and ten thousand dollars while the option was in force. In this connection the court also found that these two writings were ambiguous and uncertain, but that when construed in the light of the circumstances surrounding their making they constitute an option to purchase said real property, and not a lease and option, as contended by the plaintiffs. The court further found that defendant Goudge never personally entered into possession of the real property forming the subject of said option, but that at all times mentioned in the amended and supplemental complaints it was occupied by one Jennie Boyd as a tenant from month to month at a rental of less than $80 per month, and that its rental value did not exceed said sum. The court also found as facts that between July 17, 1913, and November 30, 1914, the defendant Goudge paid to the plaintiff J. L. Brady the