This is a companion case to Fisher v. Nash Building Co., Inc., ante, p. 397 [248 P.2d 466]. Both opinions should be read together for a clear understanding of the facts. The pleadings in that action were made a part of the pleadings in the present action by reference.
Plaintiff appeals from a judgment which decrees that he take nothing; that in the event Nash Building Company, Inc., pays the judgment rendered against it in the Fisher case, the motel property and the furniture and fixtures shall be held by it as security for the sums paid by it, with power to sell in order to reimburse it for the money paid; but in the event Tesseyman pays the Nash Company the sums paid in satisfaction of the judgment in the Fisher case, the latter company shall execute a deed and bill of sale of the motel and its furniture and fixtures to Tesseyman.
The principal issue presented at the trial was whether, under the circumstances alleged by plaintiff, there was a verbal agreement to trade his hotel for the motel, or whether, as maintained by the defendants, there was an outright sale of the motel for a cash consideration, a portion of which was paid with monies derived from the sale of plaintiff's hotel and placed in escrow under instructions of March 23d and April 11, 1949.
The court concluded that the Fishers are the owners of the motel "subject to an agreement to sell the same to the said plaintiff [Tesseyman] for the sum of $155,000, upon which purchase price there remains unpaid the sum of $37,001.17; and said Charles Tesseyman is entitled to have delivered to him, upon the payment of said sum of $37,001.17 to the said Fishers, a deed to said Motel Inn property and the furnishings and fixtures contained therein"; in the event Nash Company pays the judgment in action 17800 and receives a conveyance of the real property and a bill of sale of the furnishings, "judgment be entered to the effect that said Nash Building Company holds said Motel Inn property and said furniture and fixtures as security for the moneys so paid by the Nash Building Company to the said Fishers in satisfaction of said judgment"; upon payment by Tesseyman to Nash Company of the moneys expended in payment of the judgment, Nash Company shall forthwith convey the real and personal property to Tesseyman; in the event Tesseyman fails to pay the Nash Company within 20 days after notification thereof by Nash Company of its payment in satisfaction of the judgment, the real and personal property be sold at public auction, and out of the proceeds of said sale the sheriff shall pay Nash Company the amount paid to the Fishers, with interest, and the surplus, if any, to Tesseyman; if the proceeds are insufficient to pay the full amount due Nash Company, then the sheriff shall specify the amount, and the clerk shall docket a judgment for
Notwithstanding plaintiff's disregard of the rules, we have examined the record. It would serve no useful purpose to recite the many ramifications of the transactions involved. Suffice it to say that documentary evidence bearing plaintiff's signature and the oral testimony clearly and unequivocally support the court's findings. A letter of instructions, dated February 17, 1949, and signed by plaintiff, upon which he relied to establish that the transaction was a trade, was conclusively shown to have been superseded by other instructions of March 11, 1949; and escrow instructions thereafter signed and approved by plaintiff on March 23d and April 11, 1949, clearly establish that plaintiff was buying the motel through the Nash Company.
Plaintiff says defendants have not come into equity with clean hands, and that the court "lent its aid to defendants in
In view of the findings that the transaction was a sale to plaintiff, but in the name of Nash Company, and not a trade, that under the escrow instructions plaintiff owes the Fishers the sum of $37,001.17, that a judgment for that sum was obtained by the Fishers against Nash Company, in action No. 17800, and that, as between plaintiff and Nash Company, plaintiff was entitled to have the property conveyed to him upon the conditions set forth in the judgment — other contentions raised by plaintiff are without merit and need not be discussed. As we said in Fisher v. Nash Building Co., Inc., ante, p. 397 [248 P.2d 466], the judgments in the two cases are consistent and must be read together.
Shinn, P.J., concurred.
Wood (Parker), J., did not participate.
A petition for a rehearing was denied October 21, 1952, and appellant's petition for a hearing by the Supreme Court was denied November 25, 1952.