Wagner v. Eustathiw

HENSHAW, J.

This is an action for the specific performance of a contract for the conveyance of land. Judg

[664]

ment passed for defendant and plaintiff appeals. The uncontradicted evidence shows that plaintiff and defendant were friends and neighbors and had been such for many years. They owned adjoining lots of land on Third Street in the city of Marysville. Upon these lots buildings had been erected, the plaintiff using his building as a saloon, the defendant using his as a restaurant. There was an opening in the dividing wall which allowed access to and from the saloon and restaurant. In 1908 they agreed to build jointly two stories over the one-story buildings on their properties. These stories were built and were used without boundary wall or division, as a single building. They were maintained as a lodging-house and contained fifty-four rooms. The management and control was simplified by plaintiff leasing to defendant the lodging-house and its business, while defendant leased to plaintiff his ground floor used as the restaurant. In October, 1911, defendant became possessed of a desire to sell his property. He stated this desire to plaintiff’s witnesses. He had made repeated efforts to sell the property to plaintiff and plaintiff had declined to consider the sale upon the ground that he did not have money enough to purchase it. Defendant approached plaintiff in his place of business upon October 9th and urged him to purchase his interest in these properties, saying that he would be content with a small payment and an extension of time for later payments. He said he would take fifteeen thousand dollars for his properties, with five hundred dollars paid at the time of the execution of the deed, and one hundred dollars a month thereafter, the unpaid balance to bear seven per cent interest, secured by mortgage. Defendant labored with plaintiff for five hours to induce him to purchase upon these terms. Finally plaintiff assented and a formal executory contract of sale was entered into. An attorney was asked , to draw this paper and did so. The document signed by defendant was an agreement to sell to plaintiff the property above sufficiently described, with the furniture contained in the lodging-house, the price being fifteen thousand dollars. “Said Wagner is to pay said purchase price as follows: $100.00 at this date; $400.00 to be paid at time of making and delivery of deed; the balance to be paid by a promissory note from said Wagner to me payable in installments of at least $100.00 per month or more at option of said Wagner