139 Cal. 384, S. F. 2538, Gwin v. Calegaris

Docket Nº:S. F. 2538
Citation:139 Cal. 384, 73 P. 851
Opinion Judge:ANGELLOTTI, Judge.
Party Name:WILLIAM M. GWIN, Appellant, v. JOSEPH CALEGARIS, Respondent
Attorney:J. P. Langhorne, for Appellant. P. F. Dunne, for Respondent.
Judge Panel:JUDGES: Angellotti, J. Shaw, J., and Van Dyke, J., concurred.
Case Date:June 20, 1903
Court:Supreme Court of California
 
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Page 384

139 Cal. 384

73 P. 851

WILLIAM M. GWIN, Appellant,

v.

JOSEPH CALEGARIS, Respondent

S. F. No. 2538

Supreme Court of California

June 20, 1903

Department One

Hearing In Bank Denied.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco and from an order denying a new trial. S. K. Dougherty, Judge, presiding by request.

COUNSEL:

J. P. Langhorne, for Appellant.

P. F. Dunne, for Respondent.

JUDGES: Angellotti, J. Shaw, J., and Van Dyke, J., concurred.

OPINION

ANGELLOTTI, Judge.

Page 385

Plaintiff sought by this action to have it adjudged that a contract for the purchase by him from defendant of a lot of land had been rescinded, and to recover twenty-five hundred dollars paid by him as a deposit on account of such purchase, and fifty dollars expense of examining title, with interest from September 12, 1898.

Defendant had judgment in the court below, and plaintiff appeals from the judgment and an order denying his motion for a new trial.

It appears from the record that on July 29, 1898, plaintiff and defendant entered into a written contract, by which defendant agreed to sell, and plaintiff agreed to buy, for the sum of fifty thousand dollars, a lot of land in San Francisco, and that plaintiff, in pursuance of said agreement, then deposited with defendant twenty-five hundred dollars on account of such purchase. The portions of the agreement material to this controversy were as follows, viz: "Fifteen days (15) to be allowed the purchaser for examination of title, and if the title be not perfect and satisfactory to said Wm. M. Gwin the said sum of twenty-five hundred dollars to be immediately returned to him in gold coin. If the title be perfect and satisfactory to said Gwin, and balance of purchase money be not paid upon execution and presentation of a good and sufficient deed of grant, bargain, and sale, executed and duly acknowledged by me, the seller in person, and by my wife, the said sum of twenty-five hundred dollars is to be forfeited.. .. In case that the title prove defective, then I will pay fifty ( $ 50.00) dollars to said Gwin towards attorney fees for examination of title.. .. Said Wm. M. Gwin shall upon consummation of sale, receive from me and my wife, a good and sufficient deed of grant, bargain, and sale

Page 386

of said property, duly executed and acknowledged for record."

The plaintiff within fifteen days from the date of the agreement examined the title, and was not satisfied therewith, and immediately notified defendant that his title was not a perfect title, nor a good title of record, nor satisfactory to plaintiff, specifying his objections thereto. Defendant denied that there was any defect in his title. Nothing further having been done by either party, plaintiff, on September 12, 1898, notified defendant in writing that he rescinded said agreement, and demanded that defendant pay to him the twenty-five hundred dollars deposit and the further sum of fifty dollars paid for examination of the title. Defendant not having paid the same, plaintiff commenced this action on September 27, 1898.

On October 25, 1898, defendant, for the consideration of fifty-one thousand dollars paid him [73 P. 852] by one Margaret Kelly, by deed of grant, bargain, and sale, sold and conveyed the said lot in fee-simple absolute to said Margaret Kelly, since which time he has not been the owner of the same. He did not in any manner reserve to plaintiff any right to purchase the land, and neither plaintiff nor defendant has any right or option to purchase said land or any part thereof from said Kelly. Plaintiff set up these facts in a supplemental complaint, filed March 3, 1899, alleging further that said deed to Kelly was executed by plaintiff (evidently a clerical error), with the intent to forever divest himself of all title to said land, and with the intent to rescind and abandon his agreement with plaintiff. Defendant in...

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