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Procedural Posture

Procedural Posture

Procedural Posture

Plaintiff land buyer/seller appealed a judgment of the Superior Court of Orange County (California), which found in favor of defendants, vendors and a buyer, upon granting of the motion made pursuant to Cal. Civ. Proc. Code § 631.8 in an action seeking specific performance of a land sale contract and damages for breach of contract.

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Plaintiff land buyer/seller agreed to buy land from defendant vendors. Both parties agreed that escrow would be completed by July 25, 1963. Plaintiff later agreed to dispose of the property to defendant buyers, and an escrow was opened for that contract, contingent upon closing plaintiff’s earlier escrow. Defendant buyer did not deposit the purchase funds until July 30th, the date that plaintiff deposited the deed in the second escrow. Because the first escrow was cancelled effective July 26, 1963, the title company, on demand, returned the funds to defendant buyer. Plaintiff brought an action seeking specific performance, contending that his timely payment under the first contract was not of the essence, or alternatively that he had not defaulted on the second escrow because defendant buyer’s timely deposit was a condition precedent. The lower court found in favor of defendants. On appeal, the court affirmed, concluding that plaintiff was on notice as of July 26th that the first escrow was cancelled and that because his duty to perform arose only if he acquired title through the first escrow, defendant buyer’s duty to deposit the agreed-upon purchase price never became absolute.


Judgment in favor of defendant land vendors and buyers was affirmed because plaintiff land buyer/seller, in failing to timely close escrow on his earlier purchase, caused title not to convey. Defendant buyer did not have to deposit the purchase price in escrow and could not be in breach, and specific performance could not be ordered on his contract to purchase the property because he was notified that the first escrow was cancelled.