Allen v. Pockwitz (1894) · DecisionDepot

Allen v. Pockwitz

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Jun 13, 1894 No. No. 15028Published

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Holding. The court held that a contract provision requiring a vendee's attorney to examine and accept or reject a title makes the attorney's approval a condition precedent to the obligation to consummate the sale. Consequently, if the attorney rejects the title in good faith, the vendee is not bound to complete the purchase, regardless of whether the title is objectively marketable.

Issues

Whether a contract provision requiring a vendee's attorney to examine and accept or reject a title makes the attorney's approval a condition precedent to the obligation to purchase.
Whether the objective marketability of a title is relevant when a contract specifically conditions the sale on the approval of the vendee's attorney.

Disposition. reversed

Quotations verified verbatim against the opinion

“Our understanding and construction of the agreement is that unless plaintiff’s attorney accepted and did not reject the title, the plaintiff was not bound to consummate the sale.”

Synopsis

Vendor and Purchaser—Contract or Sale—Condition—Passing Upon Title by Attorney ror Purchaser—Recovery or Deposit.—Where a contract for the purchase of land provided that the property was to be examined and accepted or rejected by the attorney for the purchaser, the purchaser is not bound to consummate the sale unless his attorney accepted and did not reject the title; and the question whether or not the title was in fact a good marketable title is not involved in an action by the purchaser to recover back the deposit made, if there is no proof that the rejection of the title by the attorney was not the result of a sufficient examination and an honest opinion.

The Court. On June 21, 1889, the plaintiff, personally, and defendant, through the agency of David Stern and Son, real estate brokers, executed the following written instrument:

“ San Francisco, June 21, 1889.

“ Received from John De Witt Allen the sum of one thousand ($1,000) dollars, being deposit on account of thirty-five thousand ($35,000) dollars, U. S. gold coin, the purchase price of the property this day sold to him, situated in the city and county of San Francisco, state of California, and described as follows, to wit:

“ Lot and improvements situated on the northeast corner of Van Ness and Ash avenues, 58 feet on Van Ness avenue, by 100 feet on Ash avenue.

“ Terms of sale: 21 days are allowed to examine title and consummate sale. At the termination of said time the balance of said purchase money is due and payable upon tender of the deed of the property sold.

“ Title to he examined and accepted or rejected by J. De Witt Allen’s attorney. Abstract to be run down to date; $150 to be allowed for attorney’s fees. Mortgage to be released and to be free and clear from all encumbrances. Taxes to be paid to July 1, 1889.

“If the sale is not consummated in accordance with the foregoing conditions the deposit to be forfeited.

“ David Stern and Son, Agents.

“Agreed to: John De W. Allen.”

The plaintiff submitted the abstract of the record title to his attorney, Sidney V. Smith, who was a reputable attorney at law, and practicing as such in San Francisco, for examination, and to be accepted or rejected by him according to the above agreement. He rejected the title as to an undivided one-third part of the lot, for reasons stated by him in writing, and duly com muni[87]cated to defendant and to David Stern and Son. Thereupon plaintiff demanded a return of the one thousand dollars deposited, which in the mean time had been delivered to defendant. The defendant refused to return the deposit, tendered to plaintiff a deed for the lot, and demanded the balance of the purchase money, claiming that the title was perfect notwithstanding it had been rejected by plaintiff’s attorney. Thereupon plaintiff brought this action to recover the deposit of one thousand dollars with interest.

Allen v. Pockwitz

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