Simmons v. Zimmerman

The appeal is from the judgment in favor of the plaintiff upon the judgment-roll alone.

The action is to recover five hundred dollars deposit paid by the assignor of the plaintiff on an agreement for the sale of land by the defendants. The amended complaint sets out the agreement in full. It was entered into the twenty-fifth day of January, 1902, between B.F. Lyttle, of Los Angeles, as the party of the first part, and Mrs. H.P. Zimmerman and H.P. Zimmerman, her husband, of the county of Riverside, the party of the second part. The party of the second part to the agreement, in consideration of fifty dollars paid to said party, "does hereby grant and give to said first party, and to his heirs and assigns, for the period of (7) seven days, the sole and exclusive right of purchasing the following lands and premises, represented to be owned in fee simple by said second party, and to be free and clear of all encumbrances, liens, taxes, assessments and defects whatsoever, and situated in said county of Riverside, and more particularly described as follows, to wit:" Then follows a description of the premises. "It is further agreed that upon the payment by the first party of the further sum of four hundred and fifty dollars ($450) this agreement shall be extended (3) three months from February 1st, 1902. . . . Upon the first party giving notice to the second party that he is willing to purchase said lands and premises, the second party shall, within thirty (30) days thereafter, furnish to first party for his examination *Page 258 and approval or disapproval, a certificate of title of said lands and premises, made by some reputable abstract company of said county of Riverside, to be selected by the first party, and to be paid for by said second party. The first party shall have twenty days after the delivery of said certificate of title to him as aforesaid, within which to examine and approve or disapprove the title to said property as shown by said certificate, and the first party shall be the exclusive judge as to whether or not the title to said lands and premises is free and clear of and from all defects, liens, encumbrances, taxes and assessments whatsoever, and as to whether or not he is willing to accept the same. In the event said first party does not give notice that he will purchase said lands and premises as aforesaid, then the said sum of ($500) five hundred dollars, the consideration for this agreement, shall be forfeited to said second party, as liquidated damages; but if the said first party shall give such notice and shall accept said certificate of title, then said sum shall be credited on account of the purchase price of said lands and premises, and if the title to said lands and premises shall be rejected by first party, then the said sum shall be returned to the said party of the first part." It is alleged in the complaint that upon the execution of the agreement said Lyttle paid to the defendants the sum of fifty dollars, as in said agreement recited, and thereafter, on the thirtieth day of January, 1902, paid the further sum of four hundred and fifty dollars, and thereupon said agreement became and was extended for the period of three months from and after February 1, 1902. That on the tenth day of April, 1902, the said Lyttle, for a valuable consideration, granted, assigned, and transferred to one William F. West, all his right, title, interest, and estate in and to the said agreement, and on the twenty-fifth day of April, 1902, the said West, who was then and there the owner of the interest and the estate of said B.F. Lyttle, as aforesaid, duly notified the said defendants that he was willing to purchase the lands and premises described in said agreement, and for them to furnish to him for his examination and approval or disapproval a certificate of title to said lands and premises, to be made by the Riverside Abstract Company. Thereafter, on the sixth day of May, 1902, the said defendants furnished to said William F. West the said certificate of title made by said abstract *Page 259 company, and that on the twelfth day of May, 1902, the said William F. West, for a valuable consideration, granted, assigned, and transferred to the plaintiff all his right, title, interest, and estate in and to the said agreement, and that the plaintiff is the owner and holder of all the said interest and estate. That thereafter, on May 26, 1902, the plaintiff duly notified said defendants that he rejected and disapproved of the title to said lands and premises as shown by said certificate, and that he refused to accept said certificate of title, or said title, and disapproved the same, and thereupon on said day demanded of said defendants, and each of them, that they pay and return to him the said sum of five hundred dollars so deposited, as aforesaid, but that the said defendants then and there refused and still refuse to pay the said sum, or any part thereof, and that the same is due and owing from said defendants to this plaintiff, together with interest thereon from the twentieth day of May, 1902.