Brown v. Jerome

DORAN, J. As stated in the appellants’ brief, “There is remarkably little dispute about the facts in this ease.” On September 15, 1954, the parties entered into a written agreement whereby appellants Jerome agreed to sell and respondents agreed to buy certain unimproved land at a price of $1.25 per square foot, or a total of $27,630, payable in four annual installments commencing May 1, 1955, conveyance of the land to be made on final payment.

Paragraph 6 of the agreement, reads as follows:

“6. Security. Immediately upon the execution hereof, Purchasers shall pay $10,000 to Sellers. If, on or before February 1, 1955, Purchasers have entered into a contract for the construction on said land of a building containing approximately 5,000 square feet of floor space and the second foundation of such building is formed in and ready for the pouring of concrete, Sellers shall return such $10,000 to Purchasers; but, if this does not occur, Sellers may retain such $10,000 and the rights and obligations of both parties hereto shall immediately terminate.”

Paragraph 9 provided that purchaser should do no rendering on the land for a period of 20 years. Paragraph 10 provided that the purchasers would sell to appellant Baker Rendering Corporation all offal produced by purchasers at [700]the slaughter house packing plant to he erected by purchasers on said land.

The purchasers took possession of the land, proceeded to have plans drawn, and on December 27, 1954, entered into a cost-plus construction contract with a contractor. On February 7, 1955, respondents had trenches dug on the land for foundation purposes. On the same day appellants received notice from-Jerome to get off the land and to stop work, followed by a letter, dated February 7, 1955, purporting to terminate the contract and stating that appellants were keeping the $10,000 deposited as security under the contract. The respondents offered to pay appellants the full purchase price, which offer was refused. Thereafter, respondents instituted the present action for breach of contract and to recover the money paid plus damages. The trial court gave judgment for the return of the $10,000 with interest, ■ together with $1,990.74 damages.

It is appellants’ contention that “The trial court’s interpretation of the contract is erroneous”; that the findings are inconsistent and contradictory, and that there is no support in the record for the findings relating to waiver and estoppel. Appellants also complain that the court erred in the exclusion of evidence of damages offered by appellants; and that respondents failed to prove ability to perform the contract.