Clinton v. 4911 Van Nuys Ltd.

BURKE, P. J. This is an appeal by Richard H. Clinton (“Clinton”) and Joan F. Clinton from a judgment rendered against them as cross-complainants and in favor of cross-defendants 4911 Van Nuys Building, a limited partnership, Van-River, Inc., a California corporation, George A. Cordingly, Sr., president of Van-River, Inc. (collectively referred to herein as “Van Nuys”), Holland and Card House Movers, [704]J. C. Holland and O. F. Card (collectively referred to herein as “Holland”). The court adjudged that cross-complainants take nothing by reason of their cross-complaint and that cross-defendants have judgment for their costs of action and that in addition Holland have judgment against cross-complainants for the sum of $300. All other parties to the complaint and cross-complaints have been dismissed.

The court made detailed findings of fact as follows: In August 1957 Van Nuys acquired certain improved real property from Leetate Smith. As a part of the escrow for the purchase of the property Van Nuys gave Smith the privilege of removing the existing house and garage at his own cost, provided that it be accomplished by October 1, 1957. On September 4, 1957, Smith sold his privilege to remove the buildings to Clinton for $2,000, $650 of which was paid in cash, the remainder in the form of a promissory note of $1,350, no part of which was ever paid. On September 18, 1957, Clinton entered into a written agreement with Holland to remove the buildings, which agreement called for the payment of $1,000 on or before September 25, 1957. Clinton failed and refused to pay the $1,000, which the court found was without justification. On September 24 Clinton, without justification, refused to allow Holland to continue performance of the contract to move the buildings. Holland performed labor and services for Clinton of the reasonable value of $300, no part of which has been paid.

The court further found that Clinton did not remove the buildings because he had no location to which he was legally entitled to remove them and because he had not secured the necessary permits authorizing the removal or transportation of the buildings.

Van Nuys gave Clinton an extension from September 30 to October 10 within which to move the house. By an agreement of September 30, 1957, the time within which to remove the garage was extended to a date 30 days after notice. Thereafter notices dated October 21, October 28, 1957, January 2 and January 21, 1958, were given by Van Nuys to Clinton to remove the buildings and advising him that if they were not moved they would be destroyed. The court found that Van Nuys made every reasonable effort to urge Clinton to take possession of and remove the buildings but that he did not do so. The house was destroyed by order of Van Nuys on January 25, 1958, and the garage on May 15, 1958. The court further found that on the respective dates that these buildings were