Glickfeld v. Lerner

SHINN, P. J. The sixth amended complaint in the present action was denominated as one “for specific performance with abatement, to impress a trust, for damages and for declaratory relief.” Findings and judgment were in favor of defendants and plaintiffs appeal.

The essential facts are stated in the court’s findings. The contention on appeal is that the court drew from them erroneous conclusions of law. The facts are that plaintiffs agreed to purchase from defendants Lerner (to be referred to as defendants) a residential property in Los Angeles. It was at the corner of Goodland Avenue and Halkirk Street. Between the lot lines and the pavement on each street was a 12-foot strip that belonged to the city. It is stated by plaintiffs, and not denied, that a picket fence encroached upon these strips and that landscaping extended to the pavement on each street. Plaintiffs discovered that there was insufficient room within the lot lines for a swimming pool of the size they wished to install. They had assumed that the lot lines extended to the pavement. When they learned what the boundaries were they were unwilling to consummate the purchase except at a reduced price, as to which the parties failed to agree.

The first instrument executed by the buyers and the sellers was in the form of a deposit receipt. It stated a price of $28,000 of which $10,000 was to be paid in cash and the balance by assumption of a note secured by trust deed of $18,000. Five hundred dollars was paid as a deposit. It was provided, in part, that interest, taxes, insurance and rents “shall be prorated to close of escrow—June (few days after schools close).” The sale was to be consummated through escrow. It was stated “time is of the essence of this contract,” but there was stricken from the receipt a provision that the broker might extend the time for completion of the escrow for not over 30 days. Except for this statement there was none, that specified a time for completion of the escrow or the sale. The property was described as “3961 Goodland Avenue” in Los Angeles County. On March 16th escrow instructions were signed. These stated that “prior to June 15, 1954” the buyers would deposit an additional $9,500 in escrow. The sellers were to [160]furnish a termite report. The property was described as Lot 89 of Tract 11433 in the city of Los Angeles as per a certain recorded map. A dispute arose as to the boundaries of the property known as 3961 Goodland Avenue.

The court found that the boundaries of 3961 Goodland Avenue were the same as those of Lot 89 of Tract 11433, and that an area of approximately 12 feet from the edge of the pavement upon Goodland Avenue and Halkirk Street to the property lines of the lot was owned by the city of Los Angeles. It was found that neither the broker nor defendants made any statements or representation to plaintiffs as to the boundaries of the property. It was also found that by the escrow instructions the parties intended to make certain the date of performance by plaintiffs and the defendants as prior to June 15, 1954, and to supersede any uncertain or indefinite time referred to in the deposit receipt. Plaintiffs did not deposit any sum into escrow. Defendants fully performed their obligations under the escrow agreement. From and after May 15th plaintiffs demanded a reduction in the purchase price. They were not ready or willing to complete the purchase at the agreed price. On June 14th and repeatedly before that time defendants had demanded performance by plaintiffs and prior to June 14th plaintiffs had suggested to defendants that another purchaser be found for the property; defendants relied thereon. On June 15th defendants sold the property to Thomas and Margaret D. MacLeod who were bona fide purchasers. It was further found that the property was worth $28,000 and that plaintiffs had not been damaged in any sum by reason of their failure to acquire title.