Vizzone

Plaintiffs own an automobile service station which they had leased to one Hartzog who negotiated a sale of the business to defendant Selsor and one Childress.

The sales contract called for assignment of the Hartzog lease or for a new lease (for either of which plaintiffs’ consent would be required). Hartzog agreed to consummate the lease feature within 15 days. Meanwhile, plaintiff Vizzone orally agreed with Selsor and Childress to give them a new lease on the same terms as the old, for a term of five years with an option up to 10 years, at a rental of $250 a month, with a $500 deposit as security. Selsor and Childress prepared and signed a new lease along those lines and submitted it to plaintiffs for their signature and for delivery into the escrow which Selsor and Hartzog had established.

Plaintiffs signed the lease but withheld delivery. There is evidence that plaintiff Vizzone had no intention of delivering the lease until he received from Hartzog moneys owing from him to plaintiffs.

Meanwhile, Selsor entered into possession and remained in possession for three months, paying the monthly rental stipulated in the lease therefor. He also made the $500 deposit specified in…