283 P. 960 | Cal. Ct. App. | 1930
This is an appeal from a judgment for plaintiffs in an action brought to recover from the defendant the sum of $4,500 agreed by defendant to be put in escrow to be delivered to plaintiffs for an oil lease upon property belonging to the latter. While stated in different ways, the appellant urges two reasons why the judgment should be reversed: First, that there was no written contract between the parties, and second, assuming a sufficient contract, that there was a failure to perform by the respondents within the time provided.
The points raised necessitate a brief statement of the facts. On April 16, 1925, the appellant gave to the California Title Insurance Company its instructions, the material *132 portions of which are as follows: "We hand you herewith our check for the sum of five hundred dollars ($500.00) and we will hereafter hand you the sum of four thousand dollars ($4000.00) which you are authorized to pay to the order of Isaiah H. Smith, Maude L. Patrick, Cora Hillerman and Alvira Daisley, jointly or to divide the same between them as they may agree upon, provided that within thirty (30) days from the date hereof, you receive for us an oil lease upon the property hereinafter described" (here follows certain terms of the lease not in dispute in this action) "which said lease you will record for us and show in your guarantee of title when you can write the same showing title in said lessors, free and clear of encumbrance except current year's taxes and showing said title to be free from any conditions, reservations or restrictions which would prevent the drilling of an oil well on said property.
"Upon recording said lease, you will deliver a duplicate copy thereof executed by the said lessors and the undersigned to the said lessors.
"Your guarantee of title shall be written with a maximum liability of $1,000.00, The undersigned will pay one-half (1/2) of the cost of escrow charges, for recording lease, and the lessors will pay the balance of your charges."
(Here follows description of property.)
On April 20th the respondents each signed instructions as follows:
"In your escrow No. 284804
"I hand you herewith in duplicate oil lease in favor of Star Petroleum Company covering lots 1, 2, 3 and 4 of Tract 3244, in the county of Los Angeles, state of California, as per map recorded in book 37 of maps at page 22, records of said county.
"Please deliver one of these leases to the lessee and one to Clement L. Shinn when you have written your guarantee of title with liability of $1,000 showing title to the land in said lease described vested in lessor subject to 1925-26 taxes.
"Receive for me, etc." (here follows sum of money designated by each of the respondents aggregating $4,500).
[1] The argument of appellant to support its claim that no contract was entered into is in effect that the respondents did not unconditionally accept its offer as contained in *133
the instructions which we have quoted. In particular it is said that the respondents called for a guarantee of title showing the property to be free from encumbrances except taxes for the current year and free also from any conditions, reservations or restrictions which would prevent the drilling of an oil-well upon the property while the instructions of the respondents provided for a guarantee showing title vested in them subject to taxes of 1925-26. Suppose the instructions of the respondents had contained the word "only" after the word "subject," making it read "subject only to 1925-26 taxes," could it then be argued that the respondents had not accepted the offer of the appellant? We think not. For in the assumed situation the respondents would have agreed to evidence a title in themselves, free from all and every kind of encumbrance except the taxes. That the language actually employed is, under all the circumstances, subject to the construction already suggested in the question cannot be seriously doubted. And that the trial court deemed such construction to be proper is made manifest by a finding to the effect that the parties entered into a contract which called for the respondents to produce "a guarantee of title by the California Title Insurance Company at Los Angeles, California, covering the real property described in said lease, and showing title in the plaintiffs free and clear of encumbrances, except current year's taxes, and showing said title to be free of any conditions, reservations, or restrictions which would prevent the drilling of an oil well on said property, and subject only to exceptions set forth in said lease." Counsel for appellant asserts that Tuso v. Green,
Judgment affirmed.
Works, P.J., and Burnell, J., pro tem., concurred.