Armstrong v. Sacramento Valley R. Co.

LENNON, J.

From the record before us upon two motions to dismiss pending and independent appeals of the defendants and intervener in the hbove-entitled action the following uneontroverted facts appear. By the action plaintiff sought and secured a judgment against the defendants in the sum of $827.20. The intervener claimed to have some interest in the money in suit, but the trial court found to the contrary and entered judgment accordingly. The plaintiff’s cause of action arose out of a written contract of purchase and sale whereby the defendants, as parties of the first part, agreed to pay in designated installments to plaintiff, as party of the second part, certain moneys aggregating twenty-five thousand dollars as part payment of the purchase price of plaintiff’s right, title, and interest in and to certain described real property situate in the counties of Glenn and Colusa. The action. was one of twenty similar suits instituted against the defendants for the recovery of the several installments of the purchase price of the said property. The judgment appealed from was entered on the eighth day of October, 1915. The intervener and defendants gave their notices of appeal respectively on the fifteenth and twenty-third days of November, 1915. Thereafter, to wit, on April 27, 1917, and while proceedings for the settlement of a bill of exceptions were pending in the court below, the plaintiff, as the party of the first part, and the defendants and the intervener, as parties of the second part, entered into another contract in writing which, after reciting the fact of the rendition and entry of the judgment appealed from, and that the parties thereto had agreed upon the sum of $17,796.01, to be paid to plaintiff in settlement of the controversy involved in the judgment and the other actions arising out of the original contract of purchase and sale, proceeded to provide in consideration of such agreed settlement, that of the sum total agreed upon the defendants and intervener would pay the sum of five thousand dollars in cash immediately upon the execution by the plain

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tiff of the contract of settlement and the balance of $12,796.01 in land which Avas to be selected and taken from certain designated and described parcels of land. The contract further provided that Avithin five days after the payment by the defendants of the five thousand dollars in cash the parties were to submit a list of the names of fifteen persons from whom, according to a formula prescribed in the contract, three persons were to be selected as the appraisers of the land which AAras to be conveyed pursuant to the terms of the contract. The plaintiff executed the contract, and in keeping Avith its terms and within the time designated therein, the defendants made the five thousand dollar payment in cash. Subsequently, in keeping Avith the procedure provided in the contract, three appraisers were selected to value the lands which were to be conveyed in satisfaction of the remainder of the obligation due to the plaintiff. Ultimately, and before any appraisement was made or attempted, one of the appraisers refused to act, and it appears that since then the defendants and intervener are umvilling to join with plaintiff in the selection of a third appraiser. Because of this halt in the making of the required appraisement, and the consequent failure to fully perform the contract, the plaintiff has instituted an action for the specific performance of the second agreement, and here urges as one of the grounds of the motion to dismiss the appeals that by the contract in controversy the pre-existing dispute involved in the judgment appealed from 'was superseded and extinguished, and that, as a consequence, no question remains in theNpending appeals for determination by this court.