Halperin v. Guzzardi

MOORE, P. J. The question for decision is whether there was an abuse of discretion in granting the motion for a new trial.

On February 19, 1946, appellant and his wife Carolyn were owners of Lot 8 of a tract in Beverly Hills. On that day appellant executed his acceptance of respondent’s offer of $42,-500.00 for the property. Fifteen hundred ($1,500) dollars were paid with the offer whereby respondent promised to pay the further sum of $13,500 to execute a trust deed and note for $10,500 and to take the property subject to a first mort[33]gage. The offer was written in triplicate on the “Standard Form Deposit Receipt,” one copy of which was retained by respondent while the other two were presented by appellant’s brokers, Prindle and Campbell, to him. After signing the attached acceptance in duplicate, appellant kept one and handed the other to Campbell who thereafter assisted respondent to open an escrow with a responsible bank where she, in conformance with her offer signed the necessary papers and deposited the amount she was required to pay under the contract. Appellant never signed the escrow instructions or delivered a conveyance of the title or otherwise attempted to carry out his agreement. He testified that when he signed the acceptance, he instructed Campbell not to deliver it to respondent until Carolyn had signed it. Although the latter did not sign the writing, Campbell notified respondent of appellant’s acceptance and delivered the third copy to the escrow. Upon appellant’s refusal to convey Lot 8 to her, she instituted an action for specific performance.

Upon respondent’s discovery that the title stood in the names of appellant and his wife as joint tenants, that suit was dismissed without prejudice and this action was commenced to recover damages for breach of contract. The trial court made findings that (1) appellant subscribed his name to a writing such as hereinabove described and delivered it to his own agent to be held until such time as Carolyn agreed to join in the execution thereof; (2) she never signed the irist.rument; (3) the writing with appellant’s signature was never delivered to respondent or her agent; (4) appellant refused to give respondent a deed to Lot 8; (5) appellant did not act in bad faith in such refusal, but acted in good faith; (6) he was “under no obligation to deliver a deed to plaintiff”; (7) “plaintiff was not damaged in . . . any sum or at all by any act, conduct or omission on the part of the defendant.” The court concluded that there was no agreement between respondent and appellant for the sale of Lot 8 or any interest therein.