Rodriguez v. Barnett
| Decision Date | 19 May 1959 |
| Citation | 52 Cal.2d 154,338 P.2d 907 |
| Court | California Supreme Court |
| Parties | Romeo A. RODRIGUEZ et al. v. J. P. BARNETT, Appellant. L. A. 25336. |
Adelman & Schwartz and Milton M. Adelman, Beverly Hills, for appellant.
Wadsworth, Fraser & McClung and Charles E. McClung, Los Angeles, for respondents.
The defendant 1 appeals from a judgment in favor of the plaintiffs for $1,500 and from an order denying his motion for new trial. This order is not appealable. The appeal was dismissed from the bench with an admonition from the Chief Justice to counsel and to members of the bar generally to cease appealing from such an obviously nonappealable order.
The $1,500 represents the deposit paid by the plaintiffs as purchasers pursuant to a written Agreement and Deposit Receipt executed by the parties covering the purchase of certain real property for subdivision purposes located in San Bernardino County. The plaintiffs contend that this agreement was rescinded and that the deposit should be returned to them. The defendant contends that the agreement provides that the $1,500 should be retained by him, in the event the plaintiffs did not complete the purchase, as consideration for the execution of the agreement; that the $1,500 was paid by the plaintiffs as consideration for the option given them in the agreement allowing them to withdraw if they could not obtain approval of a subdivision map which was agreeable to them, and that the notice of rescission does not comply with the requirements of section 1691 of the Civil Code. He alleges that if the amount of damages suffered by him as a result of the plaintiffs' withdrawal from the agreement was not limited to $1,500 by the express terms of the agreement, his actual damages would be $15,000.
The agreement was executed by the parties on March 16, 1956. It provides in pertinent part that the $1,500 was paid by the plaintiffs and received by the defendant 'as deposit on the purchase' of the property therein described. It recites the bases upon which the total purchase price would be determined 2 and specifically states 'It being understood that the * * * final subdivision map as approved by the necessary governmental bodies, shall be subject to the approval of the purchasers herein * * *.' The agreement required that the plaintiffs furnish for the defendant's approval documentary evidence of seven specific items, namely: 1, approval of the subdivision by the necessary government agencies; 2, construction loan commitments; 3, permanent financing; 4, Veterans' Administration and F.H.A. approval of site; 5, acceptable financing; 6, improvement bond; and 7, recordation of the approved subdivision map. It there states: 'All above items subject to approval of buyers, this agreement is contingent upon their approval.' The next succeeding paragraph reads: 'It is further understood that the purchasers herein shall have six months from date to comply with the above demand of the seller to furnish said items listed in the preceding paragraph, otherwise, at the option of the seller, the monies deposited herewith shall be forfeited and retained by the seller as consideration for executing this agreement.' At the conclusion of the agreement it was provided as follows:
'Should purchasers herein fail to pay the balance of said purchase price or complete said purchase as herein provided, the sum paid hereon may, at the option of the seller, be retained as consideration for the execution of this agreement.
'It is understood and agreed that this agreement contains the entire understanding between purchasers and seller, that all representations not set out herein are expressly waived by the purchasers.
'We agree to purchase the above described property on the terms and conditions herein stated.'
On July 13, 1956, the plaintiffs served on the defendant the following Notice of Rescission:
'You are hereby notified that R. A. Rodriguez and Fred J. LaVigne hereby rescind the agreement of March 16, 1956, executed by the undersigned as Purchasers and yourself as Seller, on the following grounds:
'1. That the subdivision map as proposed by the City of Riverside, California, is unsatisfactory to the undersigned and the undersigned despite diligent efforts have been unable to obtain approval by proper governmental authorities of a subdivision map which is workable and economically feasible.
'2. That the agreement of March 16, 1956, is too indefinite and uncertain to admit of enforcement or to constitute a binding contract.
'3. That, in any event, you have failed to comply with the provisions of the agreement of March 16, 1956, and have abandoned the same.
'4. That the agreement is impossible to perform because of the failure of the City of Riverside, California, to approve the subdivision map.
Upon the refusal of the defendant to return the $1,500 the plaintiffs filed a complaint in the municipal court, framing the complaint on the common count, for money had and received. The defendant cross-complained, alleging that the plaintiffs had refused to comply with all of the terms of the agreement, and sought to recover damages in the sum of $15,000. The action was thereupon transferred to the superior court. The answer to the cross-complaint incorporated by reference the Agreement and Deposit Receipt. It set up various defenses, including impossibility of performance, failure of a condition precedent, and lack of mutuality, and alleged that notice of rescission had been served within a reasonable time after the ascertainment of the facts. The parties stipulated that the agreement and notice of rescission could be received in evidence, that the agreement had been executed and that the notice of rescission had been served.
The trial court found ( XII) that it is true that the defendant was indebted to the plaintiffs in the sum of $1,500 for money had and received and that no part of this sum had been paid. It also construed the agreement, without regard to any of the parol evidence introduced at the trial, and specifically found that the agreement provided the obligation of the purchasers to complete the purchase was conditional upon their approval of the final subdivision map as approved by the City of Riverside; that their refusal to approve the subdivision map proposed by the city was reasonable; that upon the failure to approve by the city the plaintiffs were under no duty to proceed with the purchase according to the provisions of the written...
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