Shultz v. Redondo Improvement Co.

SHAW, J.

The plaintiffs sued to recover the sum of $5825.25 paid by them to the Redondo Improvement Company as the consideration for two options to purchase a tract of land belonging to said company. The judgment was in favor of the plaintiffs. The defendants appeal from the judgment and from an order denying their motion for a new trial.

The first contract was executed on July 10, 1905. It stated that the Redondo Improvement Company thereby granted to the plaintiffs, in consideration of $5443.75, then paid, the option to purchase at any time within six months, the lot in question, at the price of $16,344.65. This price was to be

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paid, if the option was accepted, by applying thereon the amount paid as a consideration for the option, and by paying a like amount six months from the date of the option and a third like amount at a period not named, the last payment to be secured by mortgage on the property. If the option was not accepted, the consideration paid therefor was to be retained by the seller as the consideration for granting the option.

The second option was similar in form except that it was dated January 10, 1906, six months after- the first option, that the consideration was $381.50, and that it was to be exercised within six months from

its

date and that the price was $11,282.40. The $381.50 paid as the consideration of this option was the interest which had then accrued upon the unpaid portion of the price expressed in the first option. The price named in the second option, it will be observed, was made up of the $381.50 accrued interest and the two payments of $5443.75 each, constituting the unpaid portion of the price named in the first option. It is quite obvious that the second option was, in effect, a mere renewal or extension' of the first option, and that the $5443.75, paid as the consideration for the first option, was understood to be a part of the price for the sale of the lots.

The grounds upon which the plaintiffs claim the right to recover the consideration paid for the options are two: 1. That the agreements are illegal because the tract to be sold was a part of a subdivision of lots intended for sale and that at the time of the execution of the options the map of the subdivision had not been recorded or officially approved, as required by the statute of 1893 and 1901 (Stats. 1893, p. 96; Stats. 1901, p. 288); and 2. That the plaintiffs were induced to accept the options and pay the considerations therefor by material false representations made to them by the defendants to induce plaintiffs to enter into the contract and pay the money. A large part of the briefs of counsel is devoted to the discussion of the first mentioned ground, and of the validity and effect of the statutes referred to, as applied to the particular map in question. We do not find it necessary to take up this branch of the case. The court found in favor of the plaintiffs on both grounds and it is clear that the findings upon the second ground above stated are sufficient to