Mestres v. California Mutual Building & Loan Ass'n

NOURSE, P. J. Plaintiff sued for specific performance to compel the defendants to transfer to her certain real property. The defense rested on the claim that the agreed purchase price had not been tendered. The defendants had judgment.

Prior to November, 1935, plaintiff owned certain real property on which defendant association held a first deed of trust which it had instituted proceedings to foreclose. About November 12, 1935, plaintiff deeded the property to defendant association and, contemporaneously with the delivery of the deed, signed an offer to repurchase the property for an agreed purchase price of approved claims against the association of $22,300 face value. On November 27, 1935, defendant building and loan commissioner engaged in the liquidation of defendant association, accepted said offer to purchase, subject to approval of the superior court in which the liquidation proceeding was pending, and on December 2, 1935, petitioned said court for authority to make said sale. The petition came on for hearing, and on December 10, 1935, the court made its order authorizing the sale, wherein it directed: That 45 per cent of the face value of approved claims against the association be fixed and determined as the cash surrender value thereof, and that same be accepted upon that basis in payment for the property; that the commissioner was authorized to sell said real property to plaintiff and accept in payment therefor approved claims against the association having a minimum face value of $22,300.

On the same day, December 10th, as the above order authorizing sale to plaintiff was made, the same court authorized defendant commissioner to pay a liquidating dividend of 5 per cent upon all outstanding approved claims of the association, and on the next day, December 11th, the commissioner paid such liquidating dividend. On the claims used by plaintiff to purchase the real property the dividend amounted in the aggregate to $935.12. On January 10, 1936, plaintiff tendered to defendant commissioner and association said approved claims, having a minimum face value of $22,300, but without crediting, however, said dividend of $935.12 paid thereon. Defendants refused the tender, lacking the $935.12.

Appellant’s theory is that the whole contract between the parties was contained in the offer to purchase of November 12, 1935, the acceptance of November 27th, conditioned [436]upon court approval, the petition for an order authorizing the sale, and the order of authorization of December 10th. She contends that the demand thereafter for the $936.12 was an attempt to rewrite the contract, and that her deposit of approved claims of $22,300 face value was a “full compliance” of her obligation, entitling her to a deed to the property. According to appellant, when she learned of the order of December 10th approving the sale, she immediately contracted with brokers for the purchase thereof an amount of $22,300 face value; the dividend checks had been prepared and dated' as of December 2, 1935, and appellant contends that they were disbursed to strangers to the transaction.