Smiddy v. Grafton

SHAW, J.

The defendant appeals from the judgment and from an order denying him a new trial.

The complaint states a cause of action in unlawful detainer to obtain possession of a lot in Los Angeles. The defendant answered, admitting the execution of the lease set forth in

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the complaint and the expiration of the term, but claiming the right to remain in possession as a purchaser, under an agreement contained in the contract of lease, whereby the plaintiffs agreed that defendant should have the right to buy the lot at any time during the term, at a price stated. The dispute concerns only the question of the terms of the option contract and the sufficiency of an offer by the defendant to accept and perform it. The findings of the court were that the offer was not made to perform in the manner agreed upon, that it was ineffectual and that the defendant’s right of possession had terminated. Judgment for restitution to the plaintiffs was given accordingly.

The contract was in writing. The first part of it was a lease of the lot by plaintiffs to the defendant for the period of six months ending July 22, 1910, at twenty dollars monthly rental. It then provided that during that time the defendant should have the right to buy the lot at the price of two thousand five hundred dollars, of which one thousand dollars was to be paid in cash when the option was to be exercised, and that the remaining fifteen hundred dollars should be paid within three years thereafter, should bear seven per cent interest, and should be secured by “a second mortgage.’’ There was a further provision that if the option was exercised, the rent previously paid should be applied to pay interest at seven per cent on the price of two thousand five hundred dollars from the date of the lease to the date of purchase, and that the excess thereof over such interest should be applied as part of the cash payment of one thousand dollars on the price. A deed was to be made by the plaintiffs to the defendant when the payment was made and the mortgage executed.

The offer by the defendant accepting the option and tendering performance thereof was in writing. The offer, as made, was in the alternative. In explanation it is necessary to state that there was a prior mortgage for eight hundred dollars on the lot, executed by plaintiffs to one Long, which was not payable by its terms until the year 1913. The first part of the offer was to pay in cash the sum of $167.50, being the difference between Long’s eight-hundred-dollar mortgage, plus $32.50 on account of the excess of rent over interest, and the first payment of one thousand dollars, and to make