Crummer v. Zalk

DRAPER, P. J.

After 52 days of trial to the court without a jury, plaintiff had judgment against defendants Zalk and Beeler. Both defendants appeal. The appeal is upon the clerk’s transcript alone, although that transcript contains exhibits introduced at trial. Our statement of facts summarizes the findings.

In 1957, plaintiff exchanged his Oakland office building for defendant Beeler’s ranch near the San Mateo County coast. As part of this exchange agreement, Beeler was to manage the ranch properties until 1960. If plaintiff sold the ranch during that period for a price which, with ranch income, exceeded $1,000,000, Beeler was to receive a share of the excess.

[796]

If plaintiff rejected an offer which was acceptable to Beeler and exceeded $1,600,000, Beeler was to be paid $300,000 plus one-third of the excess over $1,450,000.

Zalk had sustained a claimed loss in an earlier transaction with Beeler, and had joined in several transactions with him in an effort to recoup. On December 9, 1958, Zalk made a written offer to plaintiff to purchase the land for $2,600,000. The offer was accompanied by a check for $50,000, an amount which Zalk did not have on deposit. Plaintiff accepted the offer. Zalk then repudiated his offer and purportedly stopped payment on the worthless cheek. The repudiation, as well as the original offer, was the product of collusion between Zalk and Beeler. They planned that if plaintiff rejected the offer, Beeler would assert the offer to be acceptable to him, and claim his share of “profits.” If plaintiff accepted it, Zalk could later repudiate upon some pretext of nonperformance by plaintiff, and Beeler could still claim his share of profits. Beeler thus induced Zalk to breach his contract with plaintiff. Judgment was for the excess of sales price over true value of the land, less offsets to which Beeler would have been entitled had the agreement been performed.

Appellants point out that the land description and the accepting parties named in the written acceptance differed from those of the written offer, and assert that Zalk’s offer must be deemed rejected. But the trial court concluded, from detailed findings of fact, that Zalk intended the description given in plaintiff’s acceptance, and that Beeler, though an addressee of the offer, in fact and to Zalk’s knowledge had no title, and also that plaintiff had authority to accept for Beeler, as he did.