Boys Town USA, Inc. v. World Church
| Decision Date | 23 October 1963 |
| Citation | 221 Cal.App.2d 468,34 Cal.Rptr. 498 |
| Court | California Court of Appeals Court of Appeals |
| Parties | BOYS TOWN USA, INC., etc., et al., Plaintiffs and Appellants, v. The WORLD CHURCH, etc., et al., Defendants and Respondents. Civ. 27033. |
Jerome Weber, Beverly Hills, Lawrence B. Chapman, Carpinteria, Athearn, Chandler & Hoffman, Theodore P. Lambros, San Francisco, for appellants.
Willedd Andrews, Los Angeles, for respondent World Church.
Walker, Wright, Tyler & Ward and Oliver S. Northcote, Los Angeles, for respondent Jackson Appliance, Inc.
This is an appeal by plaintiffs [i. e. purchasers] from a judgment of dismissal in an action wherein plaintiffs sought specific performance of and damages with reference to a sales agreement for the purchase of real property.
The pertinent facts will be set forth under the various contentions. The first issue is whether the contract for the sale and purchase of the subject real property is specifically enforceable. The trial court indicated in its statements from the bench that, among others, one of the grounds for sustaining defendant's motion to dismiss was that the contract in question lacked mutuality of remedy. The contract provides in pertinent part as follows:
'The Seller [i. e. defendants] shall receive Forty per cent (40%) of all net proceeds from the sale of all stock placed in escrow, but the distribution of these net proceeds will not begin until Sixty (60) days from the date of this Contract or Purchase Agreement. The Seller will allow Purchaser [i. e. plaintiffs] to distribute One Hundred Per cent (100%) of the net proceeds within the first Sixty (60) days, as the Purchaser sees fit, but the Purchaser shall be responsible to deliver Forty Per Cent (40%) of all net proceeds to the Seller as accumulated within the first Sixty (60) days as hereinabove stated and on the terms as hereinafter described until all of the obligations to the Seller and the mortgagees and beneficiaries of the Trust Deeds are retired, unless M. S. CLARK ENTERPRISES, INC., an Ohio corporation, and Fenton Sitton, also known as F. A. SITTON & COMPANY, have been paid in full; in which event, all of the proceeds from the sale of the stock shall be paid to Seller, except Ten Per Cent (10%), which is to be paid to Ranch Engineering Co., a California corporation.
'If, however, the Forty Per Cent (40%) is not sufficient to make the payment of Three Hundred Thousand Dollars ($300,000.00) per year to Seller, the Purchaser shall pay the difference between the Forty Per Cent (40%), and the said sum of Three Hundred Thousand Dollars ($300,000.00) per year.
'The terms of the Agreement and the payments thereon shall not depend upon, or be subject to any sale of stock by either BOYS TOWN, U. S. A., INC., a Nevada corporation, or SUNSET DEVELOPMENT COMPANY, a Nevada corporation.
'To secure performance of this Purchase Agreement and its terms for payment, the shareholders, a list of which is attached hereto and made a part hereof, will place One Million Eight Hundred Thousand (1,800,000) Shares of the SUNSET DEVELOPMENT COMPANY, a Nevada corporation, in escrow, and will authorize the sale of these shares to guarantee the terms of this Purchase Agreement and to fulfill the requirements of the escrow effectuating this Purchase Agreement. In the independent escrow mentioned, one of the terms will be the payment to M. S. CLARK ENTERPRISES, INC., an Ohio corporation, according to the Assumption and Purchase Agreement executed by and between BOYS TOWN, U. S. A., INC., a Nevada corporation, and M. S. CLARK ENTERPRISES, INC., an Ohio corporation, marked Exhibit B, attached hereto and made a part of this AGREEMENT by reference; and according to the Assumption Agreement by and between BOYS TOWN, U. S. A. INC., a Nevada corporation, and Fenton Sitton, also known as F. A. SITTON COMPANY, hereto attached and marked Exhibit C, and made a part of this AGREEMENT by reference.
'It is the understanding running with this AGREEMENT that the payments due to THE WORLD CHURCH, a non-profit corporation, will be made by the Purchaser, as follows:
'Forty per cent (40%) of the net proceeds derived from the sale of the above-mentioned stock will be paid to THE WORLD CHURCH, a non-profit California corporation, until the payments due THE WORLD CHURCH, a non-profit California corporation, are paid in full.
'Forty per cent (40%) of the net proceeds derived from the sale of the above-mentioned stock will be allocated to M. S. CLARK ENTERPRISES, INC., an Ohio corporation.
'Ten per cent (10%) of the net proceeds derived from the sale of said above-mentioned stock will be paid to Fenton Sitton, also known as F. A. SITTON & COMPANY.
'Ten per cent (10%) of the net proceeds derived from the sale of the said above mentioned stock shall be retained by Ranch...
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Boys Town, USA, Inc. v. World Church
...judgment was appealed to the District Court of Appeals for the State of California and on October 23, 1963, was affirmed. 221 Cal. App.2d 468, 34 Cal.Rptr. 498. Petition for hearing by the Supreme Court was denied December 18, This action was filed in the United States District Court on Feb......
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Contract Engineers, Inc. v. Welborn
...Inc. v. Lushing (1963) 212 Cal.App.2d 597, 605--606, 28 Cal.Rptr. 207, and cases there cited.) See Boys Town USA, Inc. v. World Church (1963) 221 Cal.App.2d 468, 472, 34 Cal.Rptr. 498. My review of the entire record convinces me that the trial judge exercised the requisite discretion well w......