Apra v. Aureguy
| Citation | 9 Cal.Rptr. 124 |
| Court | California Court of Appeals |
| Decision Date | 22 November 1960 |
| Parties | Celeste APRA, by his attorney in fact, Frank C. Apra, Plaintiff and Appellant, v. Carmelita T. AUREGUY, Defendant and Respondent. Civ. 18961. |
Bostwick & Caputo, San Jose, for appellant.
William E. Ferriter, San Francisco, for respondent.
This is an appeal from a judgment construing an agreement between the parties in favor of the respondent and denying the relief requested by the appellant. On appeal, the only argument is that the lower court erred in its construction of the contract.
The record reveals the following facts: On November 16, 1955, the respondent purchased from the appellant an apartment house at 649 Jones Street in the City and County of San Francisco. Under the terms of the contract of sale, the appellant agreed to accept: 1) the equity in a house in Belvedere, California, and the equity in an apartment house at 1836 Vallejo Street, San Francisco; 2) approximately $15,500 in cash, and 3) a note in the amount of $22,000 bearing interest at the rate of 6 per cent per annum, beginning December 16, 1955; interest to be paid quarterly until December 16, 1956, at which time, principal and interest payments were to be made monthly at the rate of $167 per month until the note was fully paid. The note was secured by a second deed of trust on the Jones Street property.
On March 1, 1956, respondent loaned to the appellant the sum of $8,500. Appellant executed and delivered a promissory note for this amount to the respondent. As security for his $8,500 note, the appellant re-assigned to the respondent her $22,000 note and deed of trust on the Jones Street property. On the same date, the parties entered into an agreement which described the above mentioned transaction and also provided that if, after the payment and satisfaction of the $8,500 note, the appellant wished to sell the $22,000 note and deed of trust, the respondent was to have the first right to purchase the note and deed of trust and an option to buy the note and deed of trust for the same price as might be offered by a bona fide purchaser.
The agreement further provided: 'It is further understood that in consideration of the $8,500 loan, specified payments of interest and principal shall be credited on the said $22,000 note and deed of trust as the same become due and payable until the due date of said $8,500 note or earlier termination thereof as hereinafter provided.' [Emphasis supplied.] Then followed provisions stating: 1) that if the Jones Street property was sold or transferred, the appellant was to have the privilege to pay the $8,500 note; and 2) that the $22,000 note and deed of trust were to remain in escrow, subject to withdrawal only on the instructions of both parties, and subject to sale, etc., only with the consent of both parties.
Thereafter the appellant offered to pay off the $8,500 note by tendering the sum of $4,341 in full satisfaction thereof, and the respondent refused such tender. On May 22, 1958, the appellant filed his complaint in this action requesting: 1) an accounting as...
To continue reading
Request your trial