Lonergan v. Scolnick

129 Cal. App. 2d 179 (1954)

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Nature of the Case

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Facts

D placed an ad in a Los Angeles paper reading, 'Joshua Tree vic. 40 acres, . . . need cash, will sacrifice.' In response to an inquiry D, who lived in New York, wrote a letter to P dated March 26, briefly describing the property, giving directions as to how to get there, stating that his rock-bottom price was $2,500 cash, and further stating that 'This is a form letter.' On April 7, P wrote a letter to D saying that he was not sure he had found the property, asking for its legal description, asking whether the land was all level or whether it included certain jutting rock hills, and suggesting a certain bank as escrow agent 'should I desire to purchase the land.' On April 8, D wrote to P saying 'From your description you have found the property'; that this bank 'is O.K. for escrow agent'; that the land was fairly level; giving the legal description; and then saying, 'If you are really interested, you will have to decide fast, as I expect to have a buyer in the next week or so.' On April 12, D sold the property to a third party for $2,500. P received D's letter of April 8 on April 14. On April 15 he wrote to D thanking him for his letter 'confirming that I was on the right land,' stating that he would immediately proceed to have the escrow opened and would deposit $2,500 therein 'in conformity with your offer,' and asking D to forward a deed with his instructions to the escrow agent. On April 17, P started an escrow and placed in the hands of the escrow agent $100, agreeing to furnish an additional $2,400 at an unspecified time. P then found out about the sale and sued D alleging the following: that on April 28, 1952, D repudiated the contract and refused to deliver a deed; that on April 28, 1952, the property was worth $6,081; and that P has been damaged in the amount of $3,581. D denied that any contract had been entered into, or that anything was due P. The judge stated that it was his opinion that the letter of April 8, 1952, when considered with the previous correspondence, constituted an offer of sale which offer was, however, qualified and conditioned upon prompt acceptance by P; that in spite of the condition thus imposed, P delayed more than a week before notifying D of his acceptance; and P was aware of the necessity of promptly communicating his acceptance to the D his delay was not the prompt action required by the terms of the offer. It was found that P and D did not enter into a contract as alleged in the complaint or otherwise and that D was entitled to judgment against P. P appealed.