Whitlow v. Wolfe

BARNARD, P. J. This is an action for declaratory relief involving some sort of an option agreement executed by the parties on March 27, 1946.

The defendant was the owner of some 80 acres of unsubdivided land in the outskirts of San Bernardino. The plaintiffs were real estate agents of long experience, with an office in Los Angeles. For some eight months they had been trying, without success, to sell this property for the defendant. Finally, on March 27, 1946, the instrument in question was signed, by the parties. On April 24, 1946, the plaintiffs sent a letter to the defendant stating that they thereby exercised the option “granted in the said agreement,” demanding that he comply therewith and enclosing a certified check for $5,000. The defendant immediately replied, stating that no binding agreement existed or had ever existed between them, that any arrangments pending had been cancelled, and returning the check.

This action followed. The complaint alleged, among other things, that the plaintiffs were licensed and operating as real estate agents; that the parties had entered into the agreement in question whereby the defendant agreed to sell this property to the plaintiffs for the consideration named therein; that the plaintiffs had paid $5,000 within 30 days and had performed all other obligations imposed upon them by the agreement; and that after the contract was executed they had proceeded to make oral arrangement for the purpose [612]of carrying out its provisions and looking toward the sale of the lots after the subdivision was completed and the improvements installed. It is then alleged that in carrying out the agreement they had investigated as to what could be done in connection with financing the project and as to what was required in order to subdivide the property. Also, that they talked to several contractors who expressed a willingness to contract with the plaintiffs for the development of the property on terms acceptable to the plaintiffs, to pay the plaintiffs for the lots at the rate of $800 per lot, and to appoint the plaintiffs as their exclusive agents for the sale of the homes to be built on the lots. It was further alleged that the defendant attempted to repudiate the contract on April 15, 1946, and that the agreement was a fair and equitable one. The prayer was that the agreement to sell be declared to be valid, that it be specificially enforced, and for damages in the event specific performance is impossible.

The answer denied the construction placed on the agreement by the plaintiffs and alleged want of consideration, revocation on April 9, and cancellation and rescission by mutual consent.