Berry v. Kettle

TAYLOR, J. This is an appeal by the buyers from a judgment granting a part of a condemnation award to the seller. The sole question is whether, pursuant to the agreement of the parties, the seller was entitled to receive a portion of the award after the property was taken by right of eminent domain.

The facts are stipulated. On October 5, 1961, respondent Berry,1 the seller, executed an agreement for the conveyance of certain real property, including a 92-acre parcel and certain options on other parcels, to appellants Kettle and Anderson, the buyers, for the assumption of the balance due on a note secured by a deed of trust on the property, and a stated sum to be paid 30, 60 and 120 days after execution of the agreement.

By paragraphs 3 and 3a, the buyers further agreed to pay as additional consideration the sum of $600 per acre for development work done by the seller on the 92-acre parcel and the parcels of land subject to the options, said sum to be paid at such time or times as the buyers recorded a final subdivision map.

Thereafter, plaintiff, Mark West Union School District, hereafter District (which is not a party to this appeal), condemned a 10-acre parcel described in one of the options transferred pursuant to paragraph 3 of the agreement between the seller and the buyers. Performance of all parties was completed, as provided by the agreement, except for the transfer of bare legal title (which was tied into the condemnation proceedings) and the payment of $600 an acre for the 10 acres condemned by the District.

After conclusion of the condemnation proceedings, the court ordered that $6,000 of the total of $45,000 awarded to [254]the buyers should be paid to the seller pursuant to paragraph 3a of the agreement. On this appeal from that order, the buyers contend that their obligation to pay the additional consideration was extinguished since the condition precedent for the payment thereof, i.e., the filing of a subdivision map, was made impossible by the eminent domain proceedings.

Paragraph 3 of the agreement (set forth below, so far as pertinent)2 clearly appears to call for the payment of $600 per acre as additional consideration for the development work done by the seller on the property taken by the District. As stated by the trial court in its excellent brief memorandum opinion, the agreement was prepared by lawyers, not laymen. No conditional language (i.e., “subject to,” “if,” etc.) was used in paragraph 3. It merely indicated that the payment of the additional consideration was to be postponed until the subdivision map was filed. Provisions of a contract will not be construed as conditions precedent in the absence of language plainly requiring such construction (Sosin v. Richardson, 210 Cal.App.2d 258, 264 [26 Cal.Rptr. 610]). Since the buyers ’ obligation to pay the additional consideration was absolute and the future event did not occur as contemplated, the law will require payment within a reasonable time (Nikolaus v. Howe, 122 CaI.App.2d 422 [265 P.2d 99]).