Murphy v. Lacey

SEA WELL, J.

Plaintiffs, as the assignees of one L. J. Brown, brought an action against E. V. Lacey and Veronica E. Lacey on two counts for the recovery of the sum of $2,000. The first count stated a case for money had and

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received growing out of the same statement of facts specifically pleaded in the second count. 'Said facts are substantially as follows: On June 5, 1924, defendants E. V. Lacey and Veronica E. Lacey entered into a contract whereby said defendants agreed to sell to plaintiff’s assignor, L. J. Brown, and he agreed to purchase from them at the agreed purchase price of $150,000 certain real property situate in the city and county of San Francisco. Said contract further provided that said sale was subject to a prior subsisting agreement of sale of said real property entered into by defendant Lacey as seller and one T. J. Neilan and others as purchasers. The parties to said contract referred to said agreement of sale existing between Lacey and Neilan and others at the agreed price of $160,000 net to Lacey and concluded this subject of the agreement in the following language: “All right, title and interest in said agreement of sale with T. J. Neilan et al., being hereby sold, assigned and transferred to L. J. Brown for a consideration of one ($1.00) dollar, receipt of which is hereby acknowledged and included in the sale price of this property for the said sum of one hundred fifty thousand ($150,000.00) dollars NET; it being understood that the purchaser under this contract succeeds to and receives all benefits on the seller’s part under the Neilan contract.”

Concurrently upon the execution of the Neilan agreement to purchase he deposited the sum of $1,000 with said Lacey as a part payment on account of said contract, and the same thereafter became forfeited by reason of the failure of said Neilan and others to perform the terms of their contract. Said $1,000 was in the hands of Lacey some time before the contract was made by him with plaintiffs’ assignor. It is for the recovery of this deposit sum, which plaintiffs were led into the error of believing to be $2,000, that the action was commenced in the lower court.

It is the claim of plaintiffs that by the plain terms of the portion of the contract above quoted they are entitled to everything received by Lacey from Neilan. By their answer defendants allege that said quoted portion of the contract did not express the true intent, purpose, or agreement of the parties thereto, and that the understanding and agreement intended to be made was that, in the event Neilan consummated his agreement to purchase said real