Anderson v. Southern Title & Trust Co.

MARKS, J. This is an appeal from a judgment against defendants for a $1,100 deposit made on the purchase price [701]of real property on which was a dwelling. The purchase was not completed.

Appellants were the owners of the property in the city of San Diego which they proposed to sell to respondents for $20,000.

On October 14, 1945, respondents paid appellants $100 as a deposit on the purchase price. The next day written escrow instructions were given to the Southern Title and Trust Company, with which respondents deposited an additional $1,000. The time for completion of the escrow was fixed at November 15, 1945. The following appears in respondents’ portion of the instructions:

“I understand I am to have possession of the above described premises at close of escrow.” And, “Termite clearance to be furnished at expense of seller before close of escrow.” The instructions also contain the following:

“I agree that no notice, demand, or change of instructions shall be of any effect unless given in writing and approved in writing by all parties affected thereby.

“In the event the conditions of this escrow have not been complied with at the expiration of the time provided for herein, you shall complete the same at the earliest possible date thereafter, unless I shall have made written demand upon you for the return of all instruments or money deposited by me.”

Under date of October 22, 1945, appellants delivered additional or amended escrow instructions to the title company, in which the following appears:

“Amending the instructions given you as of October 15, 1945, which were given you by the buyers herein, I hand you termite report made by Smale’s Termite Control Service as of February 12, 1945, and said termite report is the only termite clearance that I will furnish on property covered by above numbered escrow. If the buyers herein wish further termite report and clearance, they are to furnish same at their own expense.

“Regarding matter of possession of property covered by above numbered escrow, possession is to be given on or before November 25, 1945, if possible, and in any event not later than December 10, 1945.”

One copy of the amended instructions was delivered to respondents about October 23d, but they did not sign or approve it. The escrow agent wrote them two or three letters