229 P. 327 | Cal. | 1924
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *576
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *577 On September 4, 1920, the plaintiffs and defendant met at the First National Bank of Burbank and there created an escrow in the manner following: The plaintiffs signed and delivered to the bank a document entitled "Seller's Escrow Instructions," reading in part as follows: "I hereby hand you a deed executed by Giorgio Tuso and Giovannina Tuso to Glen D. Green, a single man, covering [description of premises] which you are authorized to deliver to Glen D. Green or his representatives, upon payment to you within 150 days from date hereof for account of Giorgio Tuso, the sum of twenty-nine thousand dollars ($29,000) [Here follow provisions for the procuring *578 of certificate of title and payment of encumbrances]. As a part of the consideration for said deed, you will also procure note executed by Glen D. Green in favor of Giorgio Tuso and Giovannina Tuso, his wife, for $19,000, as joint tenants with the right of survivorship, . . ." (Here follow specifications of the terms of payment of the note, instructions for affixing revenue stamps, etc., and the following provision): "Of the $10,000 cash — $300.00 is to be paid today, $700.00 within 30 days, $9,000.00 on Jan. 1, 1921." At the same time the defendant signed and delivered to the bank a paper entitled, "Buyer's Escrow Instructions," and reading in part as follows: "Herewith I hand you $300.00 and will pay $700.00 on or before thirty days, and $9,000.00 on Jan. 1, 1921, all of which you are authorized to use in connection with my purchase of the following described property [description of premises] when you can secure for me deed certificate of title issued by the Title Insurance and Trust Co. of Los Angeles, showing the record title to said property is vested in buyer, free from encumbrances except the second half taxes for the fiscal year 1920-1921, and a mortgage executed by myself in favor of Giorgio Tuso and Giovannina Tuso, his wife, as joint tenants with right of survivorship, for $19,000, . . ." (Here follow specifications of the terms of payment of the note, instructions for the procuring of fire insurance policy, recording of instruments, etc.) While these papers were being prepared by the escrow officer of the bank in the presence of all of the parties, the plaintiffs demanded that he insert therein a provision that if the buyer should default the payments already made should be forfeited to the seller. The defendant acquiesced in this and in turn demanded that a provision be inserted to the effect that if the seller should fail to furnish title the money paid should be returned to the buyer. The plaintiffs acquiesced in this, and thereupon the escrow officer inserted in the seller's escrow instructions the following provision: "Should buyers fail to make payments as specified herein the payments already made on the property shall be forfeited to the seller," and in the buyer's escrow instructions he inserted the following: "In case seller cannot furnish title as specified above within time mentioned in these instructions all money paid is to be returned to buyer." These facts are testified to by the *579 escrow officer, and for the purposes of this appeal must be accepted as true in support of the findings, even though in part contradicted by the defendant. The two escrow instructions coincided as to description of premises, purchase price, terms of payment, terms of note and mortgage, provisions for certificate of title, etc. The defendant paid to the bank the sum of $300 at the time of the signing and delivery of the papers and thereafter paid the second payment of $700 as provided in the instructions, and the plaintiffs executed and delivered into the escrow good and sufficient deeds of conveyances of the premises therein described. The defendant failed to make the payment of $9,000 on January 1, 1921, and on January 3d he delivered to the bank the following letter or notice:
"Very truly yours, "GLEN D. GREEN."
It does not appear that the plaintiffs made any direct response to this letter or notice, but some time thereafter (how long thereafter does not appear from the record) they sold and conveyed this property to another purchaser at a price in excess of that specified in the escrow herein.
Thereafter plaintiffs brought suit against the bank to recover the $1,000 held by it, alleging the common counts for moneys had and received by it to their use, further reciting the making of the contract between plaintiffs and the present defendant, the deposit by this defendant of the $1,000 in connection therewith for the use and benefit of plaintiffs and alleging that said defendant defaulted in the payments specified *580 in said agreement and refused to purchase the property, thereby forfeiting the said $1,000. The bank interpleaded the present defendant, paid the money into court and was discharged from the case. The defendant answered denying the allegations of the complaint, and filed a cross-complaint alleging the deposit by himself of the $1,000 in the bank for his own use and benefit "with the intention of having the same applied upon the purchase price" of the land described in the escrow, alleging that at no time was there any written agreement between the parties for the purchase of said land, and alleging that the sale and purchase thereof was neither agreed upon nor consummated; also alleging that "plaintiffs have sold the said property which they intended to sell to the said defendant to other parties and at considerably in excess of the amount for which they expected to sell the said property to said defendants." Plaintiffs answered the cross-complaint, and upon the issues so joined, after a trial, findings and judgment were for the plaintiffs. The findings respond to all of the issues made by the pleadings and the facts are found therein in considerably greater detail than in those allegations. No finding was made upon the allegation that plaintiffs have since sold the property at a higher price, which was not denied by plaintiffs. Defendant makes the following points in support of his appeal: (1) That no memorandum sufficient to charge him under the statute of frauds was signed by him; (2) that the provision for forfeiture upon default was not signed by him, but only by the plaintiffs; (3) that if a binding agreement was entered into it was mutually abandoned and rescinded by the parties, and (4) that the court erred in admitting into evidence the seller's escrow instructions which were not signed by the defendant and the testimony of the escrow officer as to what was said and done by the parties at the time of preparing and signing the instructions.
Appellant's first, second, and fourth points, upon analysis, are all found to rest upon the same premise, namely, the contention, or rather the assumption, on the part of appellant, that in determining whether or not appellant was bound by a valid contract, and if so, the terms thereof, we cannot look beyond the terms of the writing entitled "Buyer's Escrow Instructions," which was the only writing signed by him. We cannot accept this premise. [1] A contract between *581
two parties is created by a proposal or offer by one of the parties and an acceptance thereof by the other. [2] A contract of sale may well consist of a proposal on the part of the seller embodied in a letter signed by him alone, and an acceptance thereof on the part of the buyer embodied in another letter signed by him alone. Such is the common practice in everyday affairs. [3] When the minds of the parties meet, that is to say, when the respective writings match one another as to subject matter, terms, and conditions, a contract comes into existence between the parties, and when such terms and conditions are stated in writings which are signed by the respective parties the contract is none the less a contract in writing merely because each of the respective writings is signed by but one of the parties. Such a contract in writing fully satisfies the statute of frauds. (Frost v. Alward,
We come now to appellant's remaining contention, that the contract was mutually abandoned and rescinded by the parties. It is doubtful that this question was within the issues as framed by the pleadings, and it, does not appear to have been regarded as an issue at the trial below. But we do not find it necessary to determine this question. [6] If it be conceded that the question of abandonment and rescission was within the issues framed by the pleadings, it must be concluded that the trial court impliedly found against the defendant upon this issue because the findings of fact were fully responsive to all of the issues as framed by the pleadings. It remains, then, to consider whether the finding thus implied is supported by the evidence. The appellant's contention is that his letter or notice of January 3d constituted an offer of rescission and that the act of the plaintiffs at some time thereafter in selling and conveying the premises to a third party constituted an acceptance thereof. We are unable to agree with this contention. [7] A rescission when effected by mutual consent is a new contract, to effect which there must be a meeting of the minds. It is true that the consent of the parties to such an agreement of rescission is not required to be expressed in words, but may be manifested by conduct. But such conduct must afford a stronger basis for the inference of consent than mere conjecture or speculation. [8] The letter of January 3d was not expressly or by necessary implication an offer to rescind. By it the appellant made no offer on his part except to pay the bank for the expenses of drawing the papers. Neither expressly nor by implication did he offer to restore the plaintiffs to substantially the same position as if the contract had not been made, nor did it contain any offer, expressed or implied, to do equity, notwithstanding it appeared inferentially therefrom that the defendant had been in possession and enjoyment of the premises for some time. Neither did it contain any proposal which called upon the plaintiffs to either accept or reject the same. It amounted to no more than a notification by defendant that, he did not intend to further perform the contract. If by a process of liberal construction it could be deemed an offer of rescission we find nothing in *583
the evidence which required the trial court to conclude that plaintiffs had accepted it as such. [9] In thereafter selling the premises to a stranger plaintiffs did no more than they had a right to do in the absence of a rescission. Defendant had breached his contract and plaintiffs thereafter held the land freed from any claim or right of defendant thereto or therein. As was pointed out in the leading case of Glock v. Howard,supra, upon a breach by the buyer of his promise to pay, the seller may adopt one of four courses of action: "1. To stand upon the terms of his contract and sue for its breach under section
The judgment is affirmed.
Lawlor, J., Waste, J., Shenk, J., Richards, J., Seawell, J., and Lennon, J., concurred. *585