Jones v. Title Guaranty Etc. Co.

SLOSS, J.

The plaintiff appeals from a judgment in favor of the defendant. The purpose of the action was to recover damages from the defendant,-a trust company, for its alleged disregard of certain instructions under which there had been deposited with it, as escrow-holder, a check for two thousand dollars and three promissory notes. The appellant contends that the evidence does not support the findings upon which the court gave its judgment against him.

The respondent makes a preliminary objection to the consideration of the bill of exceptions upon the ground that the proposed bill was not served in time. That there was a delay beyond the period specified in the code is conceded. But the plaintiff, upon serving his proposed bill, served and filed a notice of intention to move to be relieved from his default under section 473 of the Code of Civil Procedure. Affidavits supporting and opposing the application were presented and considered, and the court granted the motion, and settled the bill. That relief may be granted from delay of this kind is well settled.

(Stonesifer

v.

Kilburn,

94 Cal. 33, [29 Pac. 332];

Banta

v.

Siller,

121 Cal. 414, [53 Pac. 935].) This court has always looked with favor upon orders excusing defaults and permitting controversies to be heard upon their

[377]

merits. Such orders are rarely reversed, and never “unless it clearly appears that there has been a plain abuse of discretion. ”

(O'Brien

v.

Leach,

139 Cal. 220, [96 Am. St. Rep. 105, 72 Pac. 1004].) It cannot be said that there was an abuse of discretion here, and we proceed, therefore, to a consideration of the merits of the appeal.

The transaction in controversy arose out of negotiations for the acquisition by the plaintiff of the unexpired term of a lease on certain real property in the city of Los Angeles. R. L. Tatum and H. C. Wood were real estate agents. They had brought to Jones, the plaintiff, a proposition for acquiring the lease, which was owned by the Spring Street Investment Company. The understanding, as between Jones, Tatum, and Wood, was that Jones was to pay the amounts necessary for the purchase of the lease, and that any profits remaining after the repayment to Jones of all advances made by him were to be divided equally between Jones, Tatum, and Wood. Brown Brothers Company were the brokers representing Spring Street Investment Company. The purchase price, consisting of plaintiff’s check for two thousand dollars and promissory notes for five thousand dollars additional, signed by plaintiff, Wood, and Tatum, were deposited with the defendant, a trust company, on August 27, 1913, under written instructions. The escrow instructions accompanying the deposit were signed in the name of “Frances Griff es, by H. C. Wood.” Miss Griffes was not really a party to the transaction, but it was understood that her- name should be used, and that it should be signed by Wood. The instructions declared that the signer handed the check, etc., to the defendant to be subject to the order of Brown Brothers Company on the following conditions: Brown Brothers Company were to secure the contemplated lease on given terms; to secure for the signer a reliable tenant for the north sixteen feet of the property for five years at a given rental, and also to secure a reliable tenant for the balance of the property for three or five years at a prescribed rental. The form of the lease was to be subject to the approval of B. Conde Jones, the plaintiff, who was also to pass upon the title to the property. A few days later Wood handed to the defendant an amended letter of instructions, which eliminated the conditions requiring Brown Brothers Company to procure subtenants for the proposed purchaser of the lease, and provided that the form of the lease and the