Weisberg v. Ashcraft

• Decision Date: 27 December 1963
• Citation: 36 Cal.Rptr. 188,223 Cal.App.2d 793
• Parties: Sidney M. WEISBERG and Margit Weisberg, Plaintiffs and Respondents, v. Vernon E. ASHCRAFT and Katherine R. Ashcraft, Defendants and Appellants. Civ. 26741.
• Court: California Court of Appeals Court of Appeals

Page 188

36 Cal.Rptr. 188

223 Cal.App.2d 793

Sidney M. WEISBERG and Margit Weisberg, Plaintiffs and Respondents, v. Vernon E. ASHCRAFT and Katherine R. Ashcraft, Defendants and Appellants.

Civ. 26741.

District Court of Appeal, Second District, Division 3, California.

Dec. 27, 1963.

Rehearing Denied Jan. 22, 1964.

Hearing Denied Feb. 19, 1964.

W. Garfield McDaniel, for appellants.

Sky, Winkler & Fischmann, Beverly Hills, for respondents.

SHINN, Presiding Justice.

Defendants who were purchasing a vacant lot on contract agreed to sell the property to plaintiffs for $6,000. The agreement was evidence by the instructions of the parties given to an escrow holder. May 29, 1957, plaintiffs paid into escrow $200, agreed to pay $300 more June 1st, and within 30 days to pay in $2,972 and give a note and trust deed for the balance of $2,528. Defendants agreed to on or before June 28th convey title free and clear (with exceptions of no materiality), with the proviso that if it should be shown by a title report that the lot was subject to any easement plaintiffs would have the right to give approval to the same and take title subject thereto. Legal title was in L. K. Thompson, who filed in the escrow a demand for the balance payable to him for a deed.

Plaintiffs paid in $300 June 5th; defendants paid in $450 on June 3rd which, added to $2,972, would meet Thompson's demand. June 27th, the escrow holder mailed a grant deed to defendants and also mailed to plaintiffs a title report showing an easement over the rear 5 feet of the lot. June 28th or 29th, defendants deposited their deed in escrow. July 1st, plaintiffs signed an acceptance of title subject to the easement. The acceptance was mailed in to the escrow but no record was made of the date of its receipt. July 1st, defendants' attorney signed on behalf of defendants and mailed to the escrow and to plaintiffs a notice which purported to cancel the agreement and escrow for plaintiffs' alleged default. This notice was received in the escrow July 2nd. July 5th, plaintiffs deposited in the escrow their note and trust deed and $3,020, which amount included an additional sum required to meet the demand of Thompson.

Plaintiffs brought this action and were given a decree of specific performance and for damages for defendants' refusal to complete the transaction. Defendants appealed from that judgment and it was reversed upon technical grounds. (194 Cal.App.2d 225, 14 Cal.Rptr. 817.) ¹

Upon a retrial the case was submitted upon the entire record of the former trial; specific performance was again decreed but no money judgment was awarded. Defendants appeal. Defendants filed a cross-complaint seeking damages for the clouding of their title. The judgment on the cross-complaint was against them and our discussion will dispose of this feature of the judgment.

The basic question is whether defendants had a right to withdraw from the agreement for the reason that plaintiffs failed to deposit the $300 on June 1st and to pay in the balance of $2,972 and deposit a note and trust deed for $2,528 by June 28th. We believe the defendants did not have that right.

The parties are not in disagreement as to the applicable principles of law. Sales of real property are customarily consummated through an escrow in which the instructions of the parties may and frequently do constitute their contract. When it appears from the agreement that the parties have made time of the essence, strict performance is required unless it is excused. If times are fixed for deposit of the purchase price in cash or other consideration and for deposit by the seller of sufficient instruments to convey title as agreed, each act must be performed on or before the times agreed upon. (Weisberg v. Ashcraft, supra, 194 Cal.App.2d 225, 14 Cal.Rptr. 817.) In the absence of a contrary agreement, one who has rendered full performance may withdraw from the agreement and terminate the escrow for unexcused failure of the other party to render performance as agreed. (Weaver v. Casad, 86 Cal.App.2d 593, 195 P.2d 81.) The agreement of the parties contained in the instructions conformed to the applicable legal principles. It read in part as follows: 'Time is of the essence of these instructions. If this escrow is not in condition to close by the expiration of the time provided for herein, any party who then shall have fully complied with his instructions may, in writing, demand the return of his money and/or property; but if none have complied, no demand for return thereof shall be recognized until five days after the escrow holder shall have mailed copies of such demand to all parties at their respective addresses shown in the escrow instructions.'

The deed which defendants deposited in escrow would not have conveyed a clear title, nor could defendants have conveyed a clear title without removing the easement. Plaintiffs...