Malerbi & Associates v. Seivert

VAN DYKE, P. J. This is an appeal from a judgment of dismissal entered after the appellant failed to amend its second amended complaint to which a demurrer had been sustained with leave to amend further.

Appellant brought action to recover damages for breach of an agreement to buy and sell real property. The document which it relies upon to evidence such a contract is pleaded in full. It is somewhat difficult to construe because the scrivener attempted to adapt a printed form ill-suited to the purpose. The form is headed “Deposit Receipt,” but there is typed in, in capital letters, the statement that “This is an offer.” The document continues: “Sacramento, California, - 1958. Received from_the purchaser, the sum of_Dollars, ... as a deposit on account of the purchase price of $122,500.00) . . . for the following described property in the . . . 130 ac M/L on the SE cor of Franklin & Sheldon Rds. Further described as the Seivert Ranch.” There follows a statement of price and terms and the document then continues: “180 days from the date of approval hereof by seller are allowed the purchaser to examine the title to the property and to report in writing any valid objections to the marketability thereof to the agent for the seller. If no such objections to title be reported the balance of purchase price payable in cash as above provided shall be paid by the purchaser to, and any papers given to secure the balance of said purchase price shall be deposited with Regional Realty [the name under which plaintiff conducted its corporate business], on or before Jan. 25, 1959, for account of the seller and the seller shall prior to said date deliver to said company a properly executed and acknowledged grant deed of the property, with instructions to deliver said deed pursuant to the provisions hereof.” After stating further terms not essential here, the document continues as follows: “Make deed to Regional Realty, Agent for the Buyer.” At this point in the form there are spaces for the signature of the purchaser but no signature of or for the purchaser appears. Next there appears the following: “Approval. Sacramento, California, _ 1958. The seller hereby approves the foregoing contract and agrees to sell the property herein described upon the terms and conditions herein set forth, and agrees to pay on [762]demand to Regional Realty the sum of None Dollars for services rendered. . . . The seller hereby acknowledges receipt of a copy hereof. [Signed] E. M. Seivert, Seller. Hilda S. Seivert, Seller.”

As an enforceable contract to buy and sell real estate the document is inadequate. It completely fails to identify the buyer or buyers.