Jiral v. Day

PEEK, J. This controversy arises out of an alleged breach by defendant Day of a written contract to purchase certain real and personal property owned by the plaintiff Jiral.

The complaint, in substance, alleged that plaintiff was the owner of a certain dwelling house (which is referred to in the record as a flat or apartment building) together with the furniture and furnishings located therein; that by the terms of a written contract between the parties plaintiff agreed to sell and defendant agreed to buy said property in accordance with the terms set forth in said contract; that plaintiff performed all of the covenants and conditions on her part and was ready, willing and able to convey to defendant in accordance with said contract but that defendant refused to perform as therein agreed which failure resulted in certain alleged damages to plaintiff. Defendant’s answer admitted the execution of said contract but denied that she had breached the same or that plaintiff had fully performed. In addition defendant, by cross-complaint, affirmatively alleged that said contract was merely a preliminary agreement which was to be redrafted by plaintiff’s attorney to express the true intention of the parties; that a subsequent agreement was so prepared; that upon receipt of the same it was signed by defendant and returned to plaintiff for her signature, but that plaintiff refused to execute the same or to deliver possession of the premises to defendant, thereby resulting in certain alleged damage to defendant. Plaintiff’s answer to the cross-complaint denied in general the allegations thereof, and the cause proceeded to trial upon the issues so raised. Findings of fact were adopted favorable to plaintiff and judgment in her favor was entered accord[216]ingly. Defendant’s motion for a new trial was denied and she thereafter filed her notice of appeal from the judgment as entered.

Although the points raised by appellant in her brief are not separately stated they appear to be (1) that the evidence is insufficient to sustain the findings of the trial court, first, as such findings relate to the agreement hereinafter set forth, and second, as they relate to the furniture and furnishings in the premises, and (2) that a purchaser in an executory contract for sale of real property is “entitled to possession of the property by implication.”

The agreement upon which plaintiff’s complaint was predicated is as follows:

“December 12, 1947.