Howard v. Security Title Insurance & Guarantee Co.

MARKS, J. Plaintiffs brought this action to recover damages. A demurrer to their first amended complaint was sustained without leave to amend and the judgment under attack here was entered against them. The only question presented is the bar of the statute of limitations to the cause of action.

The pertinent allegations of the first amended complaint may be thus summarized: That on November 10, 1932, plaintiffs were owners of real property in the city of Los Angeles, and Harry E. Weaver and Jean C. Weaver, his wife, were owners of real property in Tulare County; that by a written lease dated June 1, 1928, the Weavers had leased their property to R. L. Scott for use as a service station for a term expiring March 1, 1935; that plaintiffs and the Weavers entered into an agreement for the exchange of their properties and opened an escrow with and gave written instructions to defendant to carry out the exchange; the escrow instructions delivered to defendant contained the following: “Lease, if or not recorded, dated 6/1/28, in favor of R. L. Scott, expiring 3/1/35, expiring 3/1/35. You will hold for me lessor’s copy of above mentioned Lease duly assigned”; that the parties to the escrow delivered their deeds to defendant, but that the lease was not deposited; that prior to November 10, 1932, the Weavers and Scott had canceled the lease by written agreement, which fact was concealed from plaintiffs; that on November 28, 1932, defendant delivered the deeds to the respective grantees without securing the Scott lease and its assignment to plaintiffs; that upon discovering the true facts plaintiffs rescinded their contract with the Weavers and that upon their suit therefor a judg[228]ment was entered on September 25, 1934, in their favor against the Weavers rescinding the transaction and restoring to the parties their respective properties involved in the exchange. Damages were alleged in the sum of $1566.74. It is not alleged that defendant signed anything or that there was any other writing in connection with the escrow other than the deeds and the escrow instructions which were signed by plaintiffs and Mr. and Mrs. Weaver.

Plaintiffs’ original complaint was filed on August 12, 193'5, more than two and less than four years after November 28, 1932, the date upon which defendant closed the escrow.

Plaintiffs maintain that the four-year statute of limitations (subd. 1, sec. 337, Code Civ. Proc.) applies since the written portion of the escrow instruction is the basis of their suit which makes their action one upon a contract, obligation, or liability founded upon an instrument in writing. Defendant urges that the action is one in tort and is barred by the two-year statute of limitations. (Subd. 1, sec. 339, Code Civ. Proc. ) No question is raised as to the form of defendant’s plea of the statute of limitations. (See Overton v. White, 18 Cal. App. (2d) 567 [64 Pac. (2d) 758].) We will, therefore, consider any possible objection to it as waived.