Sinks v. Merrill

• Decision Date: 12 November 1963
• Citation: 35 Cal.Rptr. 113,222 Cal.App.2d 200
• Court: California Court of Appeals Court of Appeals
• Parties: Leonor L. SINKS, Plaintiff and Appellant, v. Wilbur J. MERRILL, Lloyd E. Merrill and Marjorie J. Armetta, Defendants and Respondents. Civ. 27197.

Page 113

35 Cal.Rptr. 113

222 Cal.App.2d 200

Leonor L. SINKS, Plaintiff and Appellant, v. Wilbur J. MERRILL, Lloyd E. Merrill and Marjorie J. Armetta, Defendants and Respondents.

Civ. 27197.

District Court of Appeal, Second District, Division 1, California.

Nov. 12, 1963.

A. P. Coviello, Los Angeles, for appellant.

Newton Van Why and A. R. E. Roome, Los Angeles, for respondents.

FOURT, Justice.

This is an appeal from a judgment of dismissal entered after the trial court granted defendants' motion for summary judgment in an action for specific performance of a contract for the sale of real property.

The chronology of significant events is as follows:

On April 11, 1962, plaintiff filed a complaint for specific performance of a contract to sell real property.

Defendants filed their demurrer to the complaint on May 9, 1962. The demurrer was sustained with leave to amend on May 16, 1962.

Plaintiff filed her first amended complaint on June 1, 1962. Therein plaintiff asserted that on or about March 22, 1962, defendants offered to sell a described parcel of real property; that the offer was in writing; that plaintiff accepted the offer and that on or about March 27, 1962, she deposited the sum of $500 with a designated escrow holder; that by agreement of the parties the escrow holder prepared written escrow instructions concerning the sale and purchase agreement between the parties. A copy of the escrow instructions was attached to the complaint as Exhibit A and was incorporated by reference. The attached escrow instructions bear the signature of plaintiff, however, they do not contain the signatures of defendants or any of them.

On June 7, 1962, defendants filed their answer to plaintiff's amended complaint wherein among other things they admit that plaintiff deposited $500 in escrow and that the escrow holder prepared the proposed escrow instructions 'but specifically deny that such deposit and such escrow instructions were ever authorized by or agreed to by these defendants or by any one or any of them, at any time or at all.' Defendants allege that there never was an agreement with plaintiff either in writing or orally or otherwise. There is asserted a separate defense that the first amended complaint does not state facts sufficient to constitute a cause of action against these defendants or either of them.

On June 7, 1962, defendants filed a notice of motion for summary judgment and points and authorities. It is set forth therein that '[s]aid motion will be pursuant to Section 437c of the California Code of Civil Procedure on the ground that plaintiff has no cause of action against the named defendants, and will be based upon this notice and the affidavits of Wilbur J. Merrill, Lloyd E. Merrill, Marjorie J. Armetta, Alicia H. Hefler, copies of which affidavits are served with this notice, and said motion is further based on the pleadings on file herein.'

Mr. Wilbur J. Merrill in his affidavit in support of the motion for summary judgment asserts in substance that he is the owner of an undivided one-half of the real property; that he first learned of plaintiff's interest in the proposed purchase of real property on or about April 2, 1962, when he was asked to meet plaintiff at the escrow department of the Citizens National Bank; that plaintiff stated a desire to purchase the property for the sum of $25,000 provided that she could effect a sale of real property owned by her before May 7, 1962; that affiant and defendant Lloyd E. Merrill both advised plaintiff that they would not consider such a sale and 'that at no time did affiant sign any writing, note or memorandum in writing offering to or agreeing to sell the said real property to the plaintiff; that affiant never at any time authorized plaintiff to open an escrow for the purchase by her of said real property, nor at any time did he agree that such an escrow should be opened by her for such purpose; that he has no knowledge of the existence of any writing, note or memorandum executed by any one of the defendants in this action whereby such defendant either for himself or for herself, or for the other defendants, agreed to or offered to sell to the plaintiff the real property described in the first amended complaint herein for the price of $25,000.00, or for any price whatever, and that no such writing, note or memorandum exists or ever did exist; that affiant never at any time signed any such note or memorandum, nor did he ever, at any time agree orally or in writing to sell said real property to plaintiff for $25,000.00, or for any sum at all, nor did he at any time authorize any person to sign such note or memorandum on his behalf, as agent or otherwise.'

The affidavit of Alicia H. Hefler in support of the motion provides in substance as follows: that she is the escrow officer for the Lincoln Heights office of Citizens National Bank, that as such escrow holder she has complete charge of the escrow department and is the only person in the escrow department who has dealt with the parties in the above named matter, that 'affiant has never had presented to her or had in her possession any document signed by Wilbur J. Merrill, Lloyd E. Merrill or...