Montgomery v. De Picot

This is an action for specific performance of a contract for the sale of real estate.

The contract which was the basis of the action related to a purchase by W.G. Bradshaw of a tract of land in Los Angeles County owned by defendants and was executed by defendants and said Bradshaw on November 25, 1904, the defendants being designated therein as the parties of the first part and Bradshaw as party of the second part.

The portions of the contract material for consideration on this appeal are as follows: "That in consideration of the payment to them by the party of the second part of the sum of $1,500.00, receipt whereof is hereby acknowledged, the said parties of the first part hereby agree to sell and convey . . . unto the said party of the second part, his heirs, executors and assigns, all that certain real property situated in the county of Los Angeles, state of California, described as follows, to wit: . . . upon the following terms and conditions: For the total price of $45,000.00, $1,500.00 of which has been paid by the party of the second part as above recited, $10,000.00 to be paid by the said party of the second part, or his heirs, executors or assigns, on or before May 31st, 1905, . . . and the remainder of the said purchase price, to wit: the sum of $33,500.00 on or before May 31, 1910, the said last mentioned sum to bear interest at the rate of 9 per cent. per annum, interest to be paid quarterly. And the said last deferred payment, to wit: the sum of $33,500.00 to be evidenced by a promissory note dated June 1st, 1905, bearing interest at the rate aforesaid, to wit: 9 per cent. per annum until paid, payable on or before May 31st, 1910, secured by a mortgage upon the above described property . . . deed of said property to be delivered by the first parties to the second or assigns concurrently with the said second payment of $10,000.00."

Subsequent to the execution of this contract Bradshaw assigned nine tenths of his interest therein to divers other parties, who, with himself, thereafter assigned the same to plaintiff. It is conceded that the plaintiff was a stenographer in the office of Mr. Hervey, an attorney at law, who in the transactions relative to said contract represented Bradshaw, his assignees, and plaintiff, and that the assignment to plaintiff of said contract was for the convenience of Bradshaw and *Page 511 his assignees, and that plaintiff claimed no ownership or beneficial interest under the assignment, and was not financially responsible.

Some time before the date fixed in the contract therefor, Mr. Hervey, in the interest of the plaintiff and her assignors and accompanied by the latter, went to the residence of defendants and there tendered the personal note of plaintiff, secured by a mortgage on the land, conditioned as and for the amount provided in the contract, and likewise tendered defendants at the same time the ten thousand dollars in coin which the contract provided should be paid. The defendants refused to accept either the note or the mortgage or the money tendered.