Stockwell

Plaintiffs entered into an escrow agreement with defendant for the purchase and sale of certain real property. Defendant refused to consummate the sale and plaintiffs filed suit for damages. A demurrer to the complaint was sustained with leave to amend, and an amended complaint was filed which omitted the escrow instructions which were included as an exhibit in the original complaint, pleading their purported legal effect. A general demurrer was interposed to the amended complaint which was sustained without leave to amend and judgment for defendant was granted.

Plaintiffs appeal from such judgment and contend the trial court erred: (1) in finding that there were not sufficient facts to state a cause of action; (2) in sustaining the demurrer to the first amended complaint in its entirety in that a second and separate cause of action was properly alleged; and (3) that there was abuse of discretion in not permitting plaintiffs to further amend.

The trial court, in a memorandum of opinion of ruling on demurrer, stated that plaintiffs assert the same cause of action in their amended complaint as was stated in their original complaint which was in turn based upon the escrow…