Baron

The present appeal-on essentially undisputed facts-is from a judgment after trial by court which denied appellants relief against a trustee who sold the real property of a debtor under a deed of trust at a foreclosure sale. The trustee refused to qualify appellants as bidders at the sale solely because their cashier’s checks were payable, not to the trustee, but to themselves, and thus required indorsement over to the trustee. The single issue presented is whether that refusal by the trustee was a breach of his duty.

A brief procedural and factual recapitulation shows that appellants, James H. Baron and Dale Hutchins, are partners in a real estate investment business who brought an action for damages against Colonial Mortgage Service Co. of California (respondent) and the secured creditor, Colonial Associates. Respondent was the trustee under a note secured by a deed of trust when the debtors defaulted.

After the prescribed reinstatement period had expired, notice of sale was duly published and the sale set for September 25, 1975, at 3:30 p.m. The sale was advertised as being at public auction to the highest bidder for cash payable at the time of sale.

On the day…