Kejr v. Construction Engineers, Inc.

PEEK, J.

This is an appeal by defendant from a judgment in favor of plaintiff quieting his title to certain real property and from the order denying its motion for a new trial.

On February 6, 1950, plaintiff Kejr, a resident of Colorado, entered into an agreement in writing with the defendant, a California corporation, whereby plaintiff agreed to sell and defendant agreed to buy certain timber. The execution of the contract followed a trip by Kejr to the home of Arthur C. Wright, president of defendant corporation, in Los Angeles, in the company of one Barker with whom Wright had had previous business dealings and one Hook, an employee of Wright. Barker presently had an agreement to procure timber for defendant to enable it to carry on its home building operations.

The contract incorporated by reference certain provisions of the Barker-Construction Engineers contract. One of the clauses so adopted provided as follows:

“13. Commencing on/or before July 1, 1950, purchaser will commence logging or milling operations from the lands conveyed by this agreement and will thereafter continue such operations, except when prevented from doing so by as a result of strikes, lockouts, interference by civil or military authorities, fires, other acts of God, or other acts beyond the control of purchasers, or market conditions which in the judgment of purchasers do not justify the continuance of such operations provided that in the latter case, operations shall be recommenced when in the judgment of purchasers, market conditions again justify such operations. When in full operation, it is contemplated that an average of 100,000 feet shall be logged per working day, but such production is not required hereunder. ’ ’

The last sentence of said paragraph was amended to read 10,000 instead of 100,000 as set forth therein. Also included by reference were provisions that defendant would pay $3.00 per thousand feet for all timber cut, would pay the property taxes which were then delinquent, and in the event it carried on no operations for a month, it would report such fact to plaintiff on or before the 16th of the following month.

[398]

Kejr testified that at the outset of their negotiations Wright and Hook discussed the possible purchase by defendant of certain timber lands and lumber mills. Wright agreed to purchase one of the mills. The other proposals were either turned down or put over for further study. Barker then turned the talk to a discussion of what is referred to as the “Andersonia” tract which apparently involved an attempt' by Barker to gain control of a corporation owning certain timber and a mill. He informed Wright that he desired Kejr to be cut in on his portion of that deal. Kejr believed his interest would be a sizable amount. It was then suggested by Barker that plaintiff sell his property known as the Manchester tract to Wright. Plaintiff replied that he had an offer of $100,000 cash for what he believed to be approximately 36,000,000 feet of timber. Wright admittedly knew nothing of the property but offered $2.50 per thousand. Barker insisted that plaintiff’s estimate of the amount of timber was low; that there was at least 50,000,000 feet and that if plaintiff would sell for $3.00 per thousand he would receive more than $100,000 and additionally his taxes would be less. Wright subsequently agreed to the price, and Barker commenced to type out a contract. It was suggested by Wright and Barker that since their contract had been drafted by attorneys and was legally valid, portions thereof could be incorporated by reference into the Kejr contract. As executed the contract merely set out a description of the land and then incorporated by reference some 17 paragraphs from the Barker contract. And as previously noted the price per thousand was raised and the amount of the minimum daily cut was reduced.