McCown

This is an action brought by the intended buyer of real property against the sellers for damages caused by the sellers’ alleged breach of their escrow agreement. The case went to trial on the basis of the first and fifth causes of action pleaded in a second amended complaint. The first cause of action was for breach of contract. The fifth cause of action purported to sound in fraud but merely alleged statements made by the sellers, after a closing date specified in the escrow agreement, upon which statements plaintiff relied for an extension of the time for performance. Accordingly, the trial court treated it as pleading an excuse, by way of estoppel, for nonperformance by plaintiff.

A verdict was returned for plaintiff and, on defendants9 motions, the court thereafter granted judgment for the defendants notwithstanding the verdict for plaintiff and, alternately, ordered a new trial. (Code Civ. Proc., § 629.) Plaintiff appeals from the judgment and from the order granting the new trial. (Code Civ. Proc., § 904.1, formerly § 963.)

The evidence disclosed that on May 14, 1963, escrow instructions were prepared and signed by the parties at a branch of Union bank, as escrow…