140 P. 1073 | Cal. | 1914
Lead Opinion
This is an action for the specific performance of an agreement for the sale of real estate. The lower court first made its findings and entered its judgment in favor of defendants. Later, upon motion of plaintiff for amendments to the conclusions of law and for a judgment based thereon in his favor, the court made an order granting such motion, vacating the prior judgment, and directing a new judgment in plaintiff's favor, which was accordingly entered. From this order the defendants appeal.
The statute expressly provides for an appeal from such an order. (Code Civ. Proc., sec. 663a.)
The facts of the case are presented in the findings of the court, and are in substance as follows: On the seventeenth day of September, 1910, the defendant E.H. Aigeltinger was the owner of an undivided one-half interest in a tract of land near Hopland, and on that day made, executed, and delivered to one A.H. Pape, acting as agent for the plaintiff, an instrument in writing relative to the purchase of said real estate by plaintiff in the following words:
"San Francisco, September 17, 1910.
"Rec'd. from A.H. Pape as deposit of $10 for William Copple on sale of 1/2 piece of land known as Lowe place at Hopland. Balance of Five hundred and ninety ($590) dollars to be paid on delivery of deed.
"(signed) E.H. AIGELTINGER."
The purchase price of the land named in this instrument was reasonable, and the sum of ten dollars was actually received by said Aigeltinger upon the date thereof. On September 23, 1910, said Aigeltinger requested William Copple, the principal of said Pape and plaintiff herein, to return said writing, and offered to repay to him the ten dollars which he had received thereunder. The instrument was not returned nor the offer of repayment accepted; but on the twenty-eighth day of September, 1910, Aigeltinger, for a valuable and sufficient consideration, conveyed the property to his co-defendants Spencer Beasley and Isaphene Beasley, his wife, who took such conveyance with full knowledge of the execution and terms of said instrument. On October 25, 1910, the plaintiff notified the defendant Aigeltinger that he was ready, able, and willing to take said property under the terms of *709 said instrument and offered to pay the balance of the purchase price, which offer Aigeltinger refused, but on his part offered to return the ten dollars which he had theretofore received. The plaintiff then brought this action for specific performance.
By the instrument above set forth, Mr. Aigeltinger, in consideration of the payment to him of a part of the purchase price, bound himself in writing to convey the land involved to plaintiff, upon payment of the further sum of five hundred and ninety dollars, the same being the balance of the purchase price agreed on. No time being specified therein within which plaintiff must make such payment, he certainly had the right, in the absence of any tender of a deed by Aigeltinger and demand for payment, to defer such payment for a reasonable time. In view of the language used it may well be held that his right to take the land upon payment of five hundred and ninety dollars would continue until a demand by Aigeltinger of payment and a tender of deed, but as there never was any such demand or tender of deed, it is unnecessary to determine this question, for it would hardly be contended upon the facts found that plaintiff did not make his tender within a reasonable time. Clearly there was no default on his part. While, owing to the fact that plaintiff had not signed this writing, the agreement could not originally have been specifically enforced against him (Harper v. Goldschmidt,
It is settled in this state, as to a mere option for the purchase of real estate, that where there is a consideration therefor, the option cannot be withdrawn during the time agreed *710
upon for its duration, and that when accepted according to its terms it vests in the vendee the right of acquiring the land, which right when exercised relates back to the time of giving the option so as to cut off intervening rights acquired with knowledge of the existence of the option. (See Smith v. Bangham,
It is settled that such an agreement of sale as the one here involved may be specifically enforced by the vendee against the vendor although the former has not signed the same, and although it could not originally have been specifically enforced against him by reason of the fact that he had not signed. (Civ. Code, sec.
In so far as Leuschner v. Duff,
It is the absence of any consideration that distinguishes that case from this.
The order appealed from is affirmed.
Shaw, J., Sloss, J., Lorigan, J., and Henshaw, J., concurred.
Concurrence Opinion
I concur, but in approving the quotation from Smith v. Bangham I am not indorsing all of the doctrines of that case. The rule with reference to "subsequent purchasers with notice" was correctly expressed in the opinion but I do not think Mrs. Bangham was properly classified as such a subsequent purchaser or as a person subject to the same rule. I adhere to the convictions expressed in the dissenting opinion in that case of which Mr. Chief Justice Beatty was the author and in the one written by me in which Mr. Justice Lorigan concurred.