Pivardiere v. Mercurio

DORAN, J. This is an appeal from the judgment.

As recited in appellant’s brief, “Plaintiffs brought an action against defendant for specific performance of an agreement and escrow instructions to exchange their property for defendant’s property.

“The complaint alleged the execution of the exchange [809]agreement on September 17, 1953, and the exchange escrow instructions on the following day.

“The exchange agreement provided for the exchange of plaintiffs’ 4-unit apartment house located on Riverside Drive, North Hollywood, California, together with certain furnishings, for defendant’s 20-unit motel, known as the Santa Fe Motel, located on Firestone Boulevard in South Gate, California, together with all furnishings except for those in the manager’s apartment. The agreement further provided that plaintiffs’ property was priced at $37,900.00 and was subject to a trust deed in the sum of $13,704,39, payable $145.00 per month ‘at 5%%’, leaving an equity of $24,195.61 as of September 1, 1953; that defendant’s property was priced at $95,000.00 subject to a loan of record of $47,150.00 (a superimposed figure) payable $530.00 per month at 6% interest, leaving an equity of ‘$47,150.00’ (also a corrected figure). In addition to the exchange of these properties, the agreement further provided for the transfer by plaintiffs to defendant of a trust deed on a parcel of property in Laguna Beach in the sum of $19,474.00 payable $125.00 per month at 5% interest and for the payment of $3,480.00 (a superimposed figure) by plaintiffs to defendant. Provision was made for termite clearance to be furnished by both parties and payment of real estate commissions in the sum of $1,895.00 by plaintiffs and $2,850.00 by defendant.

“The exchange escrow instructions executed the following day similarly provided for the exchange of the properties and transfer of the Laguna Beach trust deed. However, in this document it was provided that defendant was to pay to plaintiffs $4,180.39 in addition to the transfer of her motel to them, and that the assignment of the Laguna Beach trust deed was to be ‘without recourse.’

“Plaintiffs alleged that the escrow instructions carried out the exchange agreement.

“The complaint further alleged performance of the agreement and escrow instructions by plaintiffs except for the deposit of $1,680.39 in the escrow. As an excuse for such default in performance, it was alleged that the deposit of this sum was not required ‘except upon a certain date and pursuant to the performance of certain conditions by defendant Ruby Mercurio’, and that prior to the time ‘of said performance by the plaintiffs’, defendant rescinded and repudiated the agreement. It was further alleged . that the value of defendant’s equity in her property was substantially