Hall v. Remp

WILSON, J. Appellants were the owners of a restaurant business and the real property on which it was located. On August 3, 1944, they entered into an agreement in writing whereby they agreed to sell and respondents agreed to buy said property. Of the purchase price $15,000 in cash was to be paid by the purchasers “upon the execution of this agreement”—$10,000 to be deposited in escrow with the Bank of America National Trust & Savings Association and $5,000 with appellants’ attorney, Frank H. Love. It was provided that “time is the essence of this agreement.”

In the afternoon of August 3d, the date of the agreement, appellants went with their attorney to the bank where they signed the agreement of sale and the escrow instructions. Telephone calls were made to respondent Rothenborg informing him that appellants had signed the contract and requesting him and respondent Hall to call at Mr. Love’s office as soon as possible and sign it. Respondents did not appear at Mr. Love’s office until after 6:30 o’clock in the afternoon. They signed the agreement but did not deposit any part of the sum of $15,000 which was to be paid upon the execution of the agreement.

On August 4th Mr. Love, at the request of appellants, prepared a notice of cancellation and rescission of the escrow instructions which was delivered to the bank either on the fifth or seventh day of August. He also delivered a notice of cancellation to respondent Rothenborg on August 8th and on the same day mailed a copy of the notice to respondent Hall at San Diego. Respondents then brought this action for breach of contract and recovered a judgment for $4,750, from which this appeal is taken.

The court found that at all times mentioned in the pleadings Mr. Love was the actual and ostensible agent of appellants and that after the execution of the contract they, by and through their said agent, waived the time for making the cash payment that was required by the contract to be made upon its execution to and including August 8, 1944, and waived the provision that time was the essence of the agreement. This finding is not sustained by the evidence. There is no evidence that Mr. Love was the actual or ostensible agent [380]of appellants or that he had actual or ostensible authority to act for them to the extent of amending the contract or of waiving time of payment or any other of its terms. “An agent has such authority as the principal, actually or ostensibly, confers upon him.” (Civ. Code, § 2315.) The record is devoid of evidence'that appellants intentionally, or by want of ordinary care, allowed Mr. Love to believe himself to possess actual authority to waive any part of the contract (Civ. Code, § 2316), or that appellants intentionally, or by want of ordinary care, or in any manner, caused or allowed respondents to believe Mr. Love to possess such authority. (Civ. Code, § 2317.) Mr. Love was employed by appellants to prepare the agreement of sale and the escrow instructions to the bapk, and to hold the sum of $5,000 and pay the same on behalf of appellants to any creditors whose claims might be presented against them after notice of sale had been given as required by section 3440 of the Civil Code. Mr. Love’s authority extended no further than the performance of those acts.