Ingalls v. Bell

GRIFFIN, J.

There are two appeals in this case. Defendants appeal from the judgment entered on the verdict of the jury and plaintiff appeals from an order granting defendants a new trial. Since each side is thus appealing, we will refer throughout this opinion to plaintiff and defendants in order to avoid confusion. The appeal from the order granting a new trial must be first considered, and the appeal from the judgment becomes important only in ease the order granting a new trial is reversed.

(Jackson

v.

Dolan,

202 Cal. 468 [261 Pac. 706] ;

San Jose Safe Deposit Bank of Savings

v.

Bank of Madera,

121 Cal. 543 [54 Pac. 85].)

Plaintiff’s complaint, stripped of unnecessary

minutiae,

alleges: (1) that on or about March 28, 1932, plaintiff was the owner of a 6 per cent royalty interest in the minerals of certain lands; (2) that on said day she and the other owners of similar royalty interests in the minerals entered into an agreement for the sale of their interests in the minerals to defendants for $106,000, payable in installments from the proceeds of the sale of oil, with certain minimum payment requirements; (3) that thereafter defendants became desirous of assigning their rights under the contract to Shamrock Petroleum Corporation (hereinafter referred to as Shamrock) and of securing certain modifications; (4) that on March 6, 1933, an agreement and assignment was accordingly made, between plaintiff and her said co-owners on the one part and Shamrock on the other part, modifying

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the contract of sale in certain respects, including a reduction in the purchase price, and providing that the entire amount of the purchase price should be paid on or before March 6, 1936; (5) that in consideration thereof defendants at the same time executed and delivered to plaintiff a separate agreement guaranteeing the payment by Shamrock to plaintiff, a copy of which is attached to the complaint; (6) that the sum of $3,688.80 had become due plaintiff from Shamrock and remained unpaid; (7) that Shamrock had refused to pay; and (8) that she was still the owner of the royalty and offered to convey on the condition that the balance of the purchase price be paid to her. The prayer was for the full amount remaining unpaid.