Pease

The defendants appeal from a judgment for specific performance of a contract of sale of land.

Under the contract dated September 14, 1957, the defendants agreed to sell a lot to the plaintiffs for $5,750 in cash. The agreement contained the following handwritten language : “This sale is contingent on construction loan of approximately $11,000 obtained by buyer. Also that 3 homes may be built and contingent on sale of property Escrow # to close November 10, 1957. ” A printed provision was: “Time is of the essence of this agreement.”

An escrow was opened on September 16, 1957. While it was stipulated at the time of the pretrial conference that in the escrow, opened “for the purpose of carrying out this [sales] contract,” there were included the matters upon which the sale was contingent as stated in the contract, the actual wording of the escrow instructions upon that subject was: “The within escrow is contingent upon the Buyer being able to obtain a building loan for approximately $11,000.00. It is also contingent upon you [escrow agent] being notified by Mr. Conrad [the broker with whom the sellers had listed the property] or myself [buyers] that three houses can be built on the…