Hughes Mfg. & Lumber Co. v. Elliott

WILBUR, J.

This is an action to recover from the defendants the purchase price of certain bank stock. The agreement for this purchase was in writing, dated March 15, 1911. The money was to be paid within six months. It was provided that “said stock shall be placed in escrow with R. J. Waters to be by them delivered upon payment to said bank by said second parties (defendants) for the first parties (plaintiffs) said sum of $24,480. In case said second parties fail or neglect to pay said sum of $24,480 within six months, said first parties shall have the right and option to either declare said sale canceled or recover said $24,480.” Subse

[183]

quently, on March 24, 1911, escrow instructions directed to R. J. Waters as escrow-holder were signed by the parties plaintiffs and delivered to him, with said 288 shares of stock. These instructions provided that the stock was to be delivered in whole or in part whenever payment was made therefor at the rate of $85 per share, plus three per cent interest from March 24, 1911, and also provided that “In case the said stock has not been delivered to the said parties named therein on or before six (6) months from date, you will return said stock or such portions thereof as shall then remain, to the Hughes Manufacturing & Lumber Company.” The purpose of this agreement was undoubtedly to secure to the plaintiffs the purchase price of the stock and to give possession of the unpaid for stock to the escrow-holder. The provision for the delivery of the possession of the certificates of stock unpaid for to the vendors at the expiration of six months was not inconsistent with the actual vesting of title of all the stock in the vendees at the time of the delivery of the stock to the escrow-holder on March 24, 1911. The escrow instructions did not provide that the sale should be rescinded at the expiration of six months. They merely provided that the shares unpaid for should be delivered into the possession of the vendors at that time, while the contract of March 15th gave the option to confirm or rescind the sale to the vendors. After the expiration of the six months the vendors of the stock gave notice to the vendees that they would expect them to pay the full purchase price for the stock, and that “said stock is still with said escrow-holder, R. J. Waters, subject to your order.” Under these circumstances the trial court was justified in finding that the title passed. (Civ. Code, secs. 1140, 1141, 1748, 1756;