Zillmer v. Bickert

AGEE, J. pro tem.* Plaintiff appeals from a judgment in favor of defendants (husband and wife) in an action to impose an involuntary trust upon one of two unimproved lots in Burlingame, referred to herein as Lots 14 and 15. Defendant wife did not actively participate in the transaction and defendant husband is the one hereinafter referred to as respondent.

Appellant had learned that Lots 14 and 15 were for sale. He contacted respondent and they orally agreed to buy said lots jointly for $15,000. Each agreed to put up his one-half of the money at the time of closing and then toss a coin to determine which lot each would get. In accordance with their agreement, respondent deposited $1,000 and signed a deposit receipt agreement. The first deposit receipt agreement had to be changed for reasons not pertinent here and the second was signed by respondent on January 31, 1955. Appellant did not put up any part of the deposit and his name did not appear of record in the transaction.

On February 6, 1955, appellant telephoned to respondent and told him that he and several associates were attempting to buy other lots in the same block and offered to withdraw from the purchase of Lots 14 and 15 if he, appellant, was able to acquire Lots 10 and 11 for himself. Appellant admits the making of such offer but denies that it was accepted by respondent. Respondent contends that he did accept the offer in the same conversation and that the condition subsequent, i.e., the acquisition of Lots 10 and 11 by appellant, occurred shortly thereafter. The record does not show the closing date of appellant’s purchase of Lots 10 and 11 but appellant testified that he made the deposit thereon on February 11, 1955, and on February 22, 1955, appellant, in referring to such purchase, stated that “lot number 11 cost him more money” than he had anticipated. (Emphasis added.)

The next time after February 6,1955, that the parties talked to each other was on February 22, 1955. In this conversation, appellant asserted a right to either Lot 14 or Lot 15. Respondent stated that both lots were his. Appellant replied, obviously referring to his offer of February 6, 1955, “ ‘You did not confirm it.’ ”

Appellant commenced this action on March 3, 1955. Nevertheless, on March 17, 1955, respondent put up the balance of the purchase price and took title in himself and his wife by deed recorded March 25, 1955.

[481]It is thus apparent that the determinative issue in this case is whether respondent accepted appellant’s offer of February 6, 1955. The trial court held for respondent on this issue and made the following finding: “That any agreement between plaintiff and defendants for the joint purchase of said real property, or any part or parcel thereof, was abrogated and annulled by a mutual understanding and agreement fully entered into and understood by plaintiff and defendants prior to and at the time defendants so purchased the said real property. ’ ’ Since both respondent and appellant testified that their agreement made in January, 1955, remained in effect until February 6, 1955, it is obvious that the annulment found by the trial court did not occur until then and that “the time defendants so purchased” was meant to be March 17, 1955, when respondent paid the balance of the purchase price and obtained the deed.