Schellenbach v. Lagasse

SHENK, J.

Plaintiff brought this action to quiet her title to certain land in Los Angeles County. The complaint is in the usual form. In their second amended answer the defendants set up as their interest in said land a contract of purchase dated October 25, 1924, wherein the plaintiff agreed to sell and the defendant Simeon Lagasse agreed to buy said land for $7,750 and assume a mortgage of $6,000 on the property. The sum of $350 was to be paid and was paid upon the execution of the contract, and the remaining cash payment of $7,400 was payable within thirty days from the date of the contract. It was then alleged that “said contract stipulated that either party should have thirty days to prepare for and to consummate said contract, said period to be extended thirty days at the option of either party.” Other allegations with reference to the state of the title are then set forth, but it is deemed unnecessary to recite them for the reason that they do not have any controlling bearing on the disposition of this appeal. By the second amended cross-complaint the defendants re-alleged in substance the matters set forth in their second amended answer, and in addition thereto alleged facts intended to entitle them to a specific performance of said contract. It was therein averred that on the fourteenth day of November, 1924, the defendants discovered that a tenant was in possession of said property under a leasehold running for a term of years, and thereupon notified the plaintiff to cause the immediate removal of said tenant, and that plaintiff failed, refused, and neglected to do so; that thereupon the defendant Simeon Lagasse notified the plaintiff “that he would exercise his option of extending said term for consummation of said contract to and until the 25th day of December, 1924, and would at his own expense in the meantime secure the removal of said tenant.” The complaint was filed on December 4, 1924, which was before

[667]

the expiration of the thirty-day period thus attempted by the defendant Simeon Lagasse to extend the time of payment. The cause was called for trial and the plaintiff made proof of her title.

A

discussion ensued between court and counsel, during which the contract of purchase and sale was received in evidence. The court then inquired of counsel for defendants what he intended to prove and he stated in effect that the defendants were standing on a clause in the contract, as follows: