(230 P.)

cate of title, any defect of the title to be removed by the owner within 30 days after the discovery of the same; and in the event said defect could not be removed within

The buyers' escrow instructions, which were executed on the same day by Grace Shreeves, read as follows:

said time, then the money should be return-H. B. Eshleman Realty Co., Escrow Dept. "Los Angeles, January 19th, 1921. ed to the purchaser upon demand. Nettie R. Pearson, at foot of said document, accepted the above price and terms, and agreed to deliver a good deed as above stated, and further agreed to pay the Realty Company $290 as their commission for negotiating the sale from the first money received on the purchase price. After the foregoing sales deposit receipt had been signed, the parties thereto went, on the same day, though not together, to the escrow department of H. B. Eshleman Realty Company, where certain escrow instructions were executed. Nettie R. Pearson's seller's escrow instructions read as follows:

"Los Angeles, January 19th, 1921. "H. B. Eshleman Realty Co., Escrow Dept. "I will hand you a deed executed by myself, Nettie R. Pearson, a widow, to W. D. Shreeves, or parties to be named, of the property and premises situate No. 2336 West 29th Place in the city of Los Angeles, according to the legal description thereof which you are authorized, to the said buyers or their representatives upon payment to you within 30 days from date hereof, for account of myself the sum of twenty-four hundred dollars (payable by check of the H. B. Eshleman Realty Co.), from which you may deduct your escrow charges $7.50 and for title guarantee and other costs below $, and from which you may also pay all incumbrances on said property, except as specifically mentioned below, and from which you may deduct the sales commission of the H. B. Eshleman Realty Co. amounting to $290.

"As a part of the consideration for said deed, you will also procure note executed by the buyers in favor of myself for $1,800, payable in monthly installments of $50 from date of February 4, 1921, including interest from said date at 7 per cent. per annum. Secured by a trust deed, usual form, on said premises, which by guarantee shall show, subject only to second installment of taxes for the fiscal year 1920-1921, and to mortgage of $1.600 now of record to which said deed is made subject. I pay for recording said trust deed.

!

Co. $100 as evidenced by sales deposit receipt, "I have handed the H. B. Eshleman Realty and will hand you the further sum of $1.400 within 3 days from date hereof-all of which you are authorized to use in connection with your escrow No. 4154 when you can secure for me a title guarantee on the property and premises situate No. 2336 West 29th Place, in the city of Los Angeles, according to the legal record title to said property is vested in William description thereof which will show that the D. Shreeves and Grace Shreeves, my wife, as joint tenants, free from incumbrances except second half taxes for the fiscal year 1920-1921, and a mortgage to be executed in favor of the party to be named for $2,500 to be placed—(full amount of which is to go to seller) with interest at 7 per cent. per annum from said date, payable quarterly at Los Angeles, and a trust deed in the usual form to be executed in favor of Nettie R. Pearson for $1,800 securing a promissory note in like amount payable in monthly installments for $50 or more, including interest at 7 per cent. per annum from date of February 4, 1921.

"Secure such fire insurance policies as may be handed you for at least $ -; insurance on $2,500 now existing to be prorated to date of recording deed. Additional insurance as necessary to be issued to protect $1,800 trust deed. Possession to be delivered at close of escrow. Interest upon $1,600 mortgage to be prorated to close of escrow. Interest on $1,800 trust deed to be adjusted to close of escrow. "Obtain the note in my favor secured by said mortgage

trust deed

If

"Instruct the recorder to mail: Deed to -; mortgage to The guarantee when completed to be delivered to you are unable to comply with the instructions within 30 days from this date, said money and instruments shall thereafter be returned to me on my written demand, and in the absence of such demand you will proceed to comply with these instructions as soon as possible thereafter. And time is declared to be of the essence of these instructions. All disbursements may be made by check of H. B. Eshleman Realty Co. I agree to pay the following charges before the close of this escrow: For guarantee vesting title in me on property I acquire $5. For transfer fire insurance policy or mortgage clause $

amount required. For recorder's fees as follows (estimated) deed, $1. For drawing trust deed, $2.50. Notary fee, $1. Revenue stamps on trust deed, $.36. Showing trust deed in certificate of title, $2.50. Escrow, $7.50."

"Hold check, will call. Possession to be given at close of escrow. Existing insurance of $2.500 to be prorated to date of recording deed. New insurance to be issued in an amount sufficient to protect me on the $1,800 trust deed. Interest on existing $1,600 mortgage to be prorated to close of escrow. Interest on $1,800 trust deed to be adjusted at close of escrow. $ For escrow, $7.50. For internal revenue stamps on deed, $4.50. Time is declared to be of the essence of these instructions. If you are unable to comply with these instrucA reading of these respective escrow intions within the time specified, said instruments structions discloses that they vary in their shall be returned to me on my written demand; terms in this important respect, that, while but in the absence of such demand you will the seller's instructions call for a payment proceed to comply with these instructions as soon as possible thereafter. Begin search of of $2,400 cash and a mortgage of $1,600 title at once, charges for which I will pay. For conformably with the sales deposit receipt, drawing grant deed, $2.50. For notary fee, the buyers' escrow instructions state that .50."

the Shreeves are to pay $1,400 cash and

230 P.-29

that the property shall be subject to a mort | the sum of $625 out of the money held in gage for $2,500, which is a material varia- | escrow by the Eshleman Company. This betion from the sales deposit receipt, and which variation was explained by the manager of the Eshleman escrow department in his testimony before the trial court which was uncontradicted and was as follows:

(230 P.)

of a sum of money to be by the latter delivered to the grantor upon the production by the latter of a satisfactory certificate of title, the escrow holder is, as to such deed and money, the agent of both parties until such time as the said satisfactory certificate of title is produced, but he thereupon becomes the agent of the purchaser as to such deed, and of the seller as to such money. The cases above cited sustain this view, as do also the cases of Bradbury v. Davenport, 120 Cal. 152, 52 P. 301; Marr v. Rhodes, 131 Cal. 267, 63 P. 364; Whitney v. Sherman, 178 Cal. 435, 173 P. 931.

thing is at a standstill in the Eshleman pa- upon payment by him to the escrow holder pers and will be until there is some adjustment made." It was stipulated at the trial that the Title Insurance & Trust Company had not furnished, and had in fact refused to furnish, its certificate of title to the property. In the meantime the Shreeves had been let into possession of the property under the special agreement above referred to, and continued in such possession up to and after the trial of these cases. On March 4. 1921, Mrs. Pearson served a demand in writing upon the Shreeves for the delivery to her of the possession of the premises in question, with which they refused to comply, but, on the contrary, on March 17, 1921, commenced their action for specific performance. On March 26, 1921, Mrs. Pearson commenced her action against them for possession of the premises. She was succesful in both actions. The trial court made elaborate findings covering, in much detail, every phase of this rather complex situation, but in the main finding the facts to be as above more briefly stated. The main attack which the appellants in each of their appeals make upon these findings is upon that portion thereof wherein the trial court finds that, at and prior to the date of the issuance by Eshleman of his worthless check and of his disappearance and defalcation in respect to the remainder of the sum of $1.500 constituting the first payment made by the Shreeves upon the purchase price of the property, the escrow had not been so far closed as to render said Eshleman the agent of the seller in respect to these portions of the purchase price of said property. It is the contention of the appellants that the said findings of the trial court to this effect are not supported by the evidence in the case.

[3] The question thus presented for our decision is as to whether the evidence in these instant cases was sufficient to sustain the finding of the trial court that the conditions of the escrow in question had not been so far performed as to render Eshleman, at the time of his defalcation, the agent of the seller and not of the buyers of these premises. If so, these judgments are correct. If not, they must be disapproved. An examination of the documents creating this escrow, assuming it to be such, would seem to clearly show that it was the intention of the parties thereto that it was not to be closed, and the relation of the escrow holder to the respective parties thereby changed until every condition expressed in the terms of the instrument creating such escrow had been fully performed. phrase "close of the escrow" is expressly formance of these conditions to be by each and repeatedly used in relation to the perof said parties repectively performed. the escrow document signed by Mrs. Pearson it is provided:

The

In

"Possession to be given at close of escrow. Existing insurance of $2,500 to be prorated to date of recording deed. New insurance to be issued in an amount sufficient to protect me on the $1,800 trust deed. Interest on existing $1,600 mortgage to be prorated to close of escrow. Interest on $1,800 trust deed to be adjusted at close of escrow. Time is declared to be of the essence of these instructions. If you are unthe time specified said instruments shall be reable to comply with these instructions within turned to me upon my written demand."

[1, 2] It is conceded to be the correct rule of law that when papers, moneys, or other articles are by the agreement of parties to a transaction delivered to an escrow holder to be held by him in that capacity and to be distributed by him to the respective parties or to other persons upon the perform ance of the terms of the escrow, he is, prior to the performance of the conditions of the escrow, the agent of both parties thereto The same language, with reference to the (Cannon v. Handley, 72 Cal. 133, 13 P. 315; | same conditions, are repeated in the escrow McDonald v. Huff, 77 Cal. 279, 19 P. 499), instructions signed by Grace Shreeves, and and that it is equally sound law that, when- it is further stated therein as follows: "I ever the conditions attending the escrow agree to pay the following charges before have been so far performed that the trans- the close of this escrow," enumerating a action which has called the escrow into be- series of items aggregating $19.85, and also ing becomes complete, the nature of this certain undetermined charges which could dual agency changes to an agency not for only be ascertainable when the transaction both but for each of the parties to said trans- was otherwise completed. It is thus made. action in respect to those things placed in clear that the parties to these several docuescrow, to which each has thus become com- ments did not contemplate that the escrow pletely entitled. To apply a simple illustra- should be closed, or the relation of the estion, whenever a deed is deposited in escrow crow holder to the respective parties thereby the grantor to be delivered to the grantee to be changed until each and all of these con

ditions had been fully performed. It further appears from the document executed and delivered to the escrow holder by Grace Shreeves (and wherein it is apparent that she acted for both her husband and herself) that in delivering to the former the $1,500, which was to constitute their first payment on account of the purchase price of the property, she did so with the express instruction, "which you are authorized to use in connection with your escrow No. 4154 when you can secure for me a title guarantee on the property and premises (description) which will show that the record title to said property is vested in Wm. D. Shreeves and Grace Shreeves," etc.

When we look at the secondary escrow created in the Continental National Bank in relation to the $2.500 mortgage to be given by the Shreeves to Gyle, we find the check for said sum delivered by said Gyle to the bank was only to be used by it "upon delivery to you for me by the H. B. Eshleman Realty Co. of your continuation title guarantee, covering that certain real property (desscribing), showing title to said property to be vested in Wm. D. Shreeves and Grace Shreeves," together with the Shreeves mortgage for said sum and an insurance policy covering the dwelling house upon said property in an amount not less than $2,500. This ecrow closes with the statement:

"You will thereupon hand to the said H. B. Eshleman Realty Company your check payable to their order for the said sum of $2,500."

A's to the requirement in the escrow documents signed respectively by Mrs. Pearson and the Shreeves, relative to possession of the property being given to the latter at the close of the escrow, Mrs. Pearson was, as we have seen, prevailed upon to consent to deliver the possession of said property to them prior to the close of the escrow; but in the written memorandum signed by the Shreeves and relating to such possession it is stated:

ments require, as a condition precedent to the completion of this escrow, was ever made or issued by the Title Insurance & Trust Company of Los Angeles, the concern charged with this duty by the terms of these documents. It is contended by the appellants, however, that the performance of this duty was prevented by the act of Mrs. Pearson herself when the said check for $625 came back to her unpaid, but it significantly appears in the findings of the trial court here

in

"that the said Title Insurance & Trust Company, for certain reasons other than the request from said Pearson not to record said deed from her to the said Shreeves, upon the receipt of said above-mentioned instruments and instructions from the escrow department of said Eshleman Realty Company, rejected and refused to complete the search in and to said title, and refused to take any steps toward bringing down the said guarantee of title, and continues to refuse to complete the search to said title or to bring down said guarantee of title."

This finding is supported by the statement of the manager of said Title Insurance & Trust Company going to show that, on account of Eshleman's defalcation and disappearance, all matters in which Eshleman was involved were at a standstill "until there is some adjustment made."

From the foregoing state of the record it would seem too clear for discussion that much remained to be done under the terms of these several escrow documents before this escrow could be deemed to be "closed." The transaction of the Shreeves with Gyle, upon which the payment to Mrs. Pearson of the sum of $2,500 depended, was not and could not be completed until the escrow holder in that transaction had received the required certificate of title showing the title to the property to be in the Shreeves. The title to the property could not be vested in the Shreeves until the delivery and recordation of the Pearson deed, and this, by the express terms of the escrow, depended not only upon the issuance of the certificate of title, which was never issued, but it also depended upon the doing of several other things referred to in said escrow as prerequisites to its close, such as the prorating of the inwhich were to follow the recordation of the surance and the issuance of new policies deed, and also the prorating of certain inThe evidence in the case abundantly shows terest and the payment of certain incidental that it was this check which, several days charges which were expressly required to be later, was returned to Mrs. Pearson unpaid adjusted at the time of, and hence not after, on account of the default and present dis- the closing of the escrow, and which were appearance of said Eshleman who, as we all admittedly never done. And more imhave seen, was during all of the times cov-portant than these, it depended upon the ered by the transaction merely masquerading | completion of the other escrow which was to under the name of H. B. Eshleman Realty Company, operating in both its real estate and escrow departments. The undisputed evidence further shows that no such certifi

"In consideration of my being given possession of the property involved in escrow No. 4154, in advance of the close of said escrow, we hereby direct and authorize the escrow department of the H. B. Eshleman Realty Company to pay to Nettie R. Pearson the sum of $625 at this

time on account of the purchase price of said property."

result in the delivery of a large part of the purchase price, and which transaction was never completed.

[4] It is one of the cardinal principles of

(230 P.)

and conditions of their fulfillment must be 13. Judgment 256(1)—Judgment must either strictly performed. Beem v. McKusick, 10 Cal. 538; Dyson v. Bradshaw, 23 Cal. 528; Bartley v. Fraser, 16 Cal. App. 560, 117 P.

683.

We are compelled to the conclusion that there still remained unperformed a number of substantial requirements of this escrow at the time of Eshleman's defalcation, and hence, that up to and at and after said time he still occupied his original position as the agent of the purchasers in respect to whatever portions of the purchase price of said property either were or were to come into his hands before the completion of said escrow. This being so, it would inevitably follow, both that the appellants in both cases did not become entitled to demand a specific performance of the agreement for the sale to them of said property, and also that the respondent in both cases did become entitled to be repossessed of her said property upon the failure of the appellants to comply with their agreement for the purchase thereof.

The appellants urge a number of other grounds for a reversal of the cases, based upon alleged erroneous findings of the trial court. These are in the main argumentative, and are predicated upon contentions which are disposed of in the treatment of the main issue in each case. We do not consider that these require separate consideration or that they possess sufficient merit to deserve it.

The judgment in each case is affirmed.

We concur: MYERS, C. J.; LAWLOR, J.; WASTE, J.; LENNON, J.; SHENK, J.; SEAWELL, J.

SLATER v. MAYZIE. (Civ. 4446.)

(District Court of Appeal, Second District, Division 1, California. Oct. 1, 1924. Hearing Denied by Supreme Court Nov. 28, 1924.)

1. Executors and administrators 205(2)— Allowance of $25,000 for reasonable value of services for seven and one-half months held excessive.

Allowance of $25,000 for reasonable value of plaintiff's services for seven and one-half months, as secretary, companion, and business assistant of deceased, held excessive.

2. Judgment 256(1)-Generally trial court sitting with jury may not render judgment on Issue not determined by verdict of jury.

Generally trial court sitting with jury may not render judgment on issue not determined by verdict of jury, regardless of how clear and undisputed the evidence relating to such issue may be.

stand or fall on verdict as rendered by jury. Judgment must either stand or fall on verdict as rendered by jury.

4. Jury 34(1)—Judge's findings in jury trial held void as usurpation of function of jury, and judgment based thereon was void.

Where first two counts were withdrawn from jury, and verdict on third count was excessive, finding of trial court, on motion for new ble to either or both of the first and second trial, that under the evidence and law applicacounts plaintiff was entitled to recovery, and that the verdict on the third count, though excessive, should stand because of error committed in withdrawing first two counts from jury, held unauthorized as usurpation of function of jury, and judgment based on such finding was void.

Appeal from Superior Court, Los Angeles County; Charles Monroe, Judge.

Action by Beulah Slater against James Mayzie, as executor of the last will and testament of Henry T. Hazard, deceased. Judgment for plaintiff, and defendant appeals. Reversed.

Ticknor, Carter & Webster, of Pasadena, for appellant.

W. I. Gilbert and Thomas K. Case, both of Los Angeles, for respondent.

HOUSER, J. From the record it appears that the facts upon which the appeal herein is based are substantially as follows: On December 16, 1920, Henry T. Hazard, who was a wealthy lawyer, well advanced in years, and alone so far as immediate relatives were concerned, employed one Beulah Slater, the plaintiff herein, to act as his "secretary, companion and business assistant." The compensation to be paid was not agreed upon. Aside from a grammar school education and an interrupted course in a business college, Mrs. Slater had had no special training for the work which she was thus engaged to perform. She testified that in the course of her employment she accompanied Mr. Hazard on automobile rides; went with him to the bank, and to visit his doctor; helped him sort business papers; mended his clothing; washed a few handkerchiefs for him, and occasionally helped cook some meals. The employment was not continuous, but for various reasons was broken by many absences on the part of Mrs. Slater therefrom, aggregating perhaps onefourth or one-third of the entire term of the employment. There were no regular hours of employment; nor was there any fixed line of

work. Mrs. Slater came and went practicalMr. Hazard made a check in favor of Mrs. ly as suited her pleasure. On April 12, 1921, Slater for the sum of $25,000, which check was delivered to Mrs. Slater contemporaneously with the execution and delivery of an

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