Phelps v. Brown

Beatty, C. J. This is an action by the vendee in a contract for the purchase and sale of lands to recover back the sum of five hundred dollars, paid at the date of the contract as a forfeit. The decision of the superior court was against the plaintiff, and she appeals from the judgment on the judgment roll.

The following are the material facts disclosed by the record: “In June, 1887, one Horton and wife owned a tract of land in Santa Clara County, which was encumbered by a mortgage for nine thousand dollars, and the plaintiff, a married woman, owned a house and lot in the city of San José. The Hortons wished to exchange their land for the lot of plaintiff, and to negotiate the exchange they employed the defendants, who were real estate agents doing business in San José, as partners under the firm name of Brown & Ensign, and orally agreed to pay them five hundred dollars as a commission if the exchange should be made. The proposition of the Hortons was, that they would convey their land to the plaintiff for twenty thousand dollars, and that in payment thereof she should assume and pay the mortgage on the land, and should convey her lot to them for six thousand five hundred dollars, and pay to them the balance of four thousand five hundred dollars in cash when the deeds should be executed. This proposition was put in writing and given to the defendants, and they delivered it to the plaintiff. She was willing to accept the proposition and make the trade if she could realize $6,750 for her lot, and not otherwise. The defendants then agreed to pay her $250 out of their commissions when the trade should be consummated. This arrangement was satisfactory, and she thereupon drew her check upon a local bank for five hundred dollars, payable to the Hortons, and handed the same to the defendants as a deposit or first payment. The defendants on the same day gave the check to the Hortons, who executed a receipt therefor, closing with the words, ‘ trade to be finished within two weeks from date, or this deposit to be forfeited without recourse. Title to prove good or no [574]sale, and this deposit to be returned.’ A few days later the defendants handed back to the plaintiff her check, and she thereupon gave to them, in place of the check; five hundred dollars in money, which they at once paid over to the Nortons. Subsequently it appeared from the abstract of title furnished by the plaintiff that an attachment issued in an action against her husband had been levied on her property; and on learning this the Nortons refused to accept her deed, or to carry out the proposed exchange, unless she would have the attachment removed. She offered to give them a warranty deed, but refused to procure the discharge of the attachment. The Nortons were ready and willing to complete the trade, and tendered a deed of their property to plaintiff, but she never offered to convey to them an unencumbered title to her property, and never tendered or offered to pay the balance of the purchase-money. Thereupon the Nortons abandoned the trade, and without the knowledge of plaintiff, and without any directions as to the disposition to be made of the money, returned the five hundred dollars to the defendants, and the latter returned to them their receipt, with an indorsement thereon as follows:—