This is an appeal by Frank and Bertha Zimmerman from a judgment in favor of the respondent, Charles S. Moore, for specific performance, allowing Moore damages for wrongful withholding of real property and for certain rentals and also allowing the respondent, Daniel E. O'Connell, costs incurred as escrow attorney and an attorney fee.
The appellants, Frank and Bertha Zimmerman, entered into an agreement whereby they agreed to sell to the respondent, Charles S. Moore, a business known as "Frank & Ma's Houseful of Fun" located in the City of Irwin, together with the fixtures, equipment, license and good will of the business and the premises on which the business was conducted, and also a "California State Board of Equalization On Sale Beer, and Wine License" issued to the sellers at the said place of business. The agreed price was $3,000 payable as follows: respondent Moore was to transfer an International tractor which was valued at $700; cash in the amount of $500, and a promissory note for $1,800 payable within one year and secured by a first deed of trust on the real property being sold. The agreement provided: "IT IS FURTHER AGREED that the consideration price is to be allocated as follows:
Land ................................. $2,000.00 Business ............................. 150.00 On-Sale License ...................... 50.00 Fixtures and Equipment ............... 800.00 __________ $3,000.00"
The escrow agreement provided: (1) that "No notice, demand, or change of instructions shall be of any effect unless in writing." It also authorized "... the escrow attorney ... [to] terminate the escrow and return papers and consideration for failure (1) to supply merchantable title, or (2) to deposit consideration." It also provided that "... recording shall be within 45 days, but may be thereafter if no contrary demand is made" and for payment of creditors within a reasonable time of the transfer of the license to respondent Moore. Respondent Charles S. Moore deposited with O'Connell, the escrow attorney, the $500 in cash, a bill of sale for the tractor and his note for $1,800 secured by a first deed of trust in favor of appellants as required by the agreement. The parties then applied to the Department of
Thereafter, on June 18, 1956, the escrow attorney received from the appellants a purported rescission of the contract reading as follows:
"You are hereby notified that the undersigned cancel and terminate their escrow with you entitled as above and request return of their papers. This cancellation and termination is for the reason, among others, that Moore has been denied permit for transfer to him of Beer and Wine License, thus reducing sellers' security on the transaction."
Apparently in answer to the above communication, the escrow attorney, on June 28, 1956, by letter advised the Zimmermans as follows:
"Please be advised that Mr. Charles S. Moore has signed and executed all necessary instruments in order to consummate the sale and transfer as provided for in your escrow agreement entered into April 3, 1956. He advised me, as escrow attorney, that he is quite willing to pay the purchase price as agreed, even though the restricted `A' license covering beer and wine has been temporarily denied.
"It is my opinion that the escrow should be closed on the terms agreed upon and that your letter dated June 15, 1956, relative to cancellation of the escrow is without merit.
"You will please be advised that unless I hear from you within five (5) days from this date, I will file an action in the Superior Court of Merced County and interplead yourselves and Mr. Moore for legal determination of your respective rights.
"I trust you will give this matter your immediate attention."
Thereafter, on July 13, 1956, Attorney Lin Griffith, representing the Zimmermans, wrote a letter to the escrow attorney, stating that the Zimmermans wished to stand on their rescission, and giving as their only reason the fact that Moore's application for transfer of the beer and wine license was denied. The respondent escrow attorney then brought this action in interpleader wherein he prayed judgment that the parties be required to interplead together concerning their claim to the real and personal property and that he be awarded his costs and a reasonable attorney fee for labor and services in the matter of the escrow and for prosecuting this action. The appellants and respondent Moore each filed an
Judgment was entered in favor of respondent O'Connell for his costs, one-half to be paid by appellants and one-half to be paid by respondent Moore, and also that appellants pay to O'Connell an additional sum of $100 as an attorney fee. Judgment was also in favor of respondent Moore as prayed for, except that the judgment excluded the California State Board of Equalization On-Sale Beer and Wine License.
In the instant case the record shows that respondent Moore was buying not only a beer and wine license but also real and personal property which was apportioned in the contract. Further, the building was constructed so that it could be used for living quarters, and he testified that he intended to live on the premises. The contract price of the on-sale beer and wine license was only $50, while the price of the remaining real and personal property amounted to $2,950, and as we have stated, the items of the real and personal property were segregated as to price.
One of the conditions of the escrow agreement was that disbursement to creditors was to be made within a reasonable time after transfer of the on-sale beer and wine license. The agreement also provided for recording within 45 days thereafter if no contrary demand was made. Neither condition was complied with. However, appellants by failing to execute and deposit with the escrow attorney a grant deed to the real property prevented recordation, thereby preventing payment to the creditors, since the provision unquestionably meant that the creditors were to be paid after performance by both sides. Therefore, appellants are in no position to complain of a breach of a duty brought about by their default. Nor is the mere fact that the license was not transferred within 45 days in and of itself vital since time was not of the essence of the escrow agreement. (Jameson v. Shephardson, 83 Cal.App. 596 [257 P. 157].)
It is next contended by appellants that respondent Moore should have delivered the tractor to them. We assume that they mean an immediate physical delivery of the tractor itself. That was not required by the contract. The contract states: "The Buyer is to transfer to Sellers one (1) International Tractor ..." The trial court found that Moore did deliver a bill of sale for the tractor to the escrow agent. Such constituted transfer of the tractor pending consummation of the escrow.
Appellants next argue that the rental value of the premises and the amount of damages were improper. Since there is substantial evidence in the record to sustain the trial court's finding concerning these matters, this court must sustain those findings.
Section 386.6 of the Code of Civil Procedure (added in
The judgment is affirmed except that portion thereof which allows the respondent Daniel E. O'Connell $100 attorney fees and as to that portion the judgment is reversed. It is further ordered that respondent Charles S. Moore, recover from appellants his costs on appeal and that respondent Daniel E. O'Connell suffer his own costs on appeal.
Van Dyke, P.J., and Peek, J., concurred.