Wesley N. Taylor Co. v. Russell

• Decision Date: 17 August 1961
• Citation: 15 Cal.Rptr. 357,194 Cal.App.2d 816
• Parties: WESLEY N. TAYLOR CO., a corporation, and Stanley J. Beligan, Plaintiffs and Respondents, v. Barnett RUSSELL et al., Defendants, Barnett Russell and Lillian Russell, Appellants, CORBETT ENTERPRISES, INC., a California corporation, Plaintiff and Respondent, v. Barnett RUSSELL and Lillian Russell, husband and wife, Defendants and Appellants. Civ. 25207, 25216.
• Court: California Court of Appeals Court of Appeals

Page 357

15 Cal.Rptr. 357

194 Cal.App.2d 816

WESLEY N. TAYLOR CO., a corporation, and Stanley J. Beligan, Plaintiffs and Respondents, v. Barnett RUSSELL et al., Defendants, Barnett Russell and Lillian Russell, Appellants, CORBETT ENTERPRISES, INC., a California corporation, Plaintiff and Respondent, v. Barnett RUSSELL and Lillian Russell, husband and wife, Defendants and Appellants.

Civ. 25207, 25216.

District Court of Appeal, Second District, Division 2, California.

Aug. 17, 1961.

Rehearing Denied Sept. 8, 1961.

Hearing Denied Oct. 11, 1961.

Joseph Lewis, Los Angeles, Max Sisenwein and Warren M. Stanton, Los Angeles, of counsel, for appellants.

Henry R. Taecker, Jr., Los Angeles, for respondents Taylor and Beligan.

W. A. Perilmuter and Charles A. Price, Los Angeles, for respondent Corbett.

ASHBURN, Justice.

These appeals are from judgments for plaintiffs in two consolidated actions arising out of the failure to perform a contract for the sale of real property. In L.A. 25216 plaintiff Corbett Enterprises, Inc., as vendee, sought specific performance of said contract against defendants, as vendors, which relief the trial court granted. In L.A. 25207, Wesley M. Taylor Co., a corporation, and Stanley J. Beligan, sued defendants for real estate commissions as brokers involved in the sale to Corbett and recovered judgment of $5,500.

The Facts.

On January 26, 1959, a deposit receipt was executed by the buyer, the sellers and the broker, which, with the buyer's deposit of $2,000, was taken to the Bank of America on January 28th and an escrow opened. Escrow instructions were signed by the buyer and sellers at that time, these instructions containing substantially the same provisions as the deposit receipt.

The deposit receipt acknowledges the deposit of $2,000 upon a 'purchase price of One Hundred and Twenty Thousand & 00/100 ($120,000.00) Dollars. The balance of the purchase price is to be placed in Escrow * * * within 30 days from the date hereof, as follows, to-wit: Cash $45,000, incl. above deposit. 1. Buyer to obtain new 1st trust deed in the amount of $50,000, subject to certain conditions as listed on the reverse side of this offer. 2. Seller shall carry back a second trust deed in the amount of $25,000 payable at the rate of $250.00 per month, or more, including interest at the rate of 6%, until paid. 3. This offer is subject to all of the conditions & reservations listed on the reverse side hereof, said conditions & restrictions being a part of this offer.' The following provision appears on the reverse side of the deposit receipt and also in the escrow instructions: 'It is understood and agreed between the parties herto, that this contract [word 'escrow' used in instructions] is contingent upon the purchaser being able to obtain a first trust deed on the premises in the amount of $50,000, payable in equal monthly payments amortized over a period of 15 years, such payments to include interest at not more than 6%. Should the purchaser be unable to obtain such loan prior to 15 days of the date set for the close of escrow, this contract shall thereupon become null and void and all monies returned to the purchaser.'

Paragraph 7 of the deposit receipt provides: 'Time is the essence of this contract; but the time for any act required to be done may be extended not longer than thirty days by the undersigned agent.' Pursuant to this authority, on February 12 the broker extended to March 12 the time limit for obtaining the $50,000 loan and for the closing of the escrow.

On February 13 appellants called at the bank, at which time they examined the file. While in the bank Dr. Russell heard a telephone conversation between the escrow officer and another person who was identified to him as a savings and loan association, and at that time heard that a commitment had been made for a $50,000 loan at 6% for a 12-year period. Appellants promptly went home, prepared and posted on that same day a letter to the escrow holder canceling the escrow for the declared reason that 'the failure of the purchaser, Corbett Enterprises, Inc., to obtain the specified loan at the specified time automatically voids the contract in the escrow agreement.' This is the only notice of cancellation given by appellants and was received by the bank on February 16. Copies of it were received by the broker and by respondent but not until February 14.

On February 13 respondent, who then had no knowledge of said notice of cancellation, personally delivered to the escrow holder a notice that 'the contingency regarding the $50,000.00 first trust deed is hereby cancelled.' The loan for 12 years had been approved on February 13, and on February 24 the escrow holder received written notice from the Western Escrow Company of the commitment of the Southwest Savings & Loan Assn. to make said $50,000 loan. Demand was made upon appellants to comply with the terms of the escrow, but they elected to stand upon their cancellation. They also refused to release any part of the $45,000 then on deposit.

The Specific Performance Action--No. 25216.

Beset by doubt as to the finality and appealability of the specific performance judgment we invited counsel to submit authorities upon the point. This they have done, respondent arguing that the judgment is interlocutory and appellants that it is final and appealable. After careful consideration of the authorities we have concluded that respondent's position upon this matter is correct.

The judgment is designated on its face as 'Interlocutory Judgment,' the word interlocutory being in handwriting and judgment in typing. It concludes with the following statement which presumably is in the handwriting of the trial judge: '[T]he court specifically retains jurisdiction of this action until complete disposition of the obligations and rights of the parties in the action and under the agreements have been settled.' Of course neither of these indicia is conclusive (Bauer v. Bauer, 38 Cal.App.2d 309, 316, 100 P.2d 1070, 101 P.2d 1117; Lyon v. Goss, 19 Cal.2d 659, 669, 123 P.2d 11), but the terms of the judgment itself seem so. It first declares that the agreement be specifically performed and that defendants within 45 days after entry of judgment execute a deed to plaintiff covering the property covered by the agreement and deliver same into escrow, failing which the clerk of the court is directed to execute such a deed and deliver it into escrow No. 381-1929 in the Crenshaw-Stocker Branch of Bank of America National Trust and Savings Association. Plaintiff is ordered within said 45 days to have in the escrow for the benefit of defendants the sum of $95,000, a portion of which is to be represented by a particularly described first trust deed for $50,000, also a second trust deed for $25,000. Then it is provided, in paragraph V: 'That it be referred to Eugene Fink, C.P.A., as Referee, to take and state an account of all rents, issues and profits of the said premises, which have accrued between March 30th, 1959, and the date of entry of this judgment, together with all legitimate expenditures between said dates in the following manner.' Subparagraph (a) requires the referee to ascertain and report all rents, revenues, issues, income and other considerations received and collected by defendants or which should have been realized within the specified period, and that defendants be charged with the same. Subparagraph (b) requires the referee to ascertain and report the amount of money reasonably and necessarily expended during said period for taxes, assessments, water rents, fire rent (sic), plate glass and accident insurance premiums and necessary repairs, and to credit the same to defendants. Subparagraph (c) directs the referee to ascertain and report to the court the amount found to be due to plaintiff from defendants. Subparagraph (d) says that upon filing of the report within 35 days from entry of judgment plaintiff shall recover said amount from defendants and have personal judgment therefor; that before filing of same copies of the report shall be served upon the respective parties who shall have 10 days thereafter within which to file objections to same 'and that a hearing upon the said objections, if any, to the Referee's report shall be held by the Court.' Subparagraph (e) orders defendants to turn over to the referee within 5 days after entry of judgment all leases, insurance policies, books, accounts and records, kept by defendants which pertain to the said property. Paragraph VI directs the escrow clerk upon 'the expiration of forty-five days from the date of this Judgment, or upon the entry by the Court of its judgment as to the amounts found due to the plaintiff because of the rents, issues and profits received from the said premises by the defendants between March 31, 1959, and the date of entry of this Judgment, whichever occurs last, proceed to close said escrow'; it then adds: '[H]owever, the Escrow Clerk shall deduct from the said amount of money payable to the defendants the sum of money found to be due to the plaintiff from the defendants by the Court because of said rents, issues and profits, and the said sum shall be paid by the Escrow Clerk to the plaintiff herein.'

This judgment plainly requires that the plaintiff shall have credit upon its $95,000 escrow deposit for the net amount found due it as fixed after court hearing and rendition of judgment 'as to the amounts found due to the plaintiff.' The recognized general standard for determining whether a judgment is interlocutory or final is stated in Lyon v. Goss, supra, 19 Cal.2d 659, 670, 123 P.2d 11, 17, as follows: 'As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue in left for future consideration except the fact of compliance or non-compliance with the terms of the first decree, that decree is final, but where anything further in the nature of judicial...