Gunby v. Swarts

RICHARDS, J.

This is an appeal from a judgment in favor of the plaintiff in an action to recover the sum of $4,750 as the purchase price of certain properties alleged to have been sold and delivered by the plaintiff to the defendant, the said properties consisting of certain oil and mineral rights in certain lands located in the county of Ventura, state of California. The plaintiff claiming to own these rights was at the time the negotiations for their purchase began a resident of Chillicothe, Missouri. The defendant was at said time a resident of Hermosa Beach, California. The negotiations between the parties were conducted through the medium of letters and telegrams, and since the only question involved in this case is as to whether the minds of

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the parties so met through the medium of these letters and telegrams and of the acts of the parties or their agents done in pursuance thereof as to have resulted in such a transaction as would give the plaintiff the right of recovery in this action, it wifi be necessary to follow the transaction through a

résumé

of what these documents contain.

The negotiations between the parties began with a letter from Swarts to Gunby dated December 21, 1916, wherein the former stated that he had learned that the latter owned mineral rights under a tract of land in the Ojai Valley, of which he had a chance to sell the surface to parties who desired also to secure these mineral rights. He therefore asked if Gunby would consider an offer of $20 per acre, allowing five per cent commission on the sale. On January 11, 1917, Gunby replied to this letter indicating that an oil company of which he owned or controlled a majority of the stock owned the property and that it would be willing to sell at $30 per acre net, but not with the five per cent commission. To this letter Swarts replied, stating that he could handle the property at the price of $30 per acre, but would expect to receive the five per cent commission, and suggesting that if this was satisfactory a deed be made in his name and forwarded either to Gunby’s brother at Long Beach cr the Ventura Abstract Company, subject to his approval, and to be delivered to him when the purchase price should be paid in full. In response to this letter Gunby replied that while the title of the property was in him the stockholders of the oil company had interests therein which led him to call a meeting of the stockholders on February 8th, with the object of authorizing a sale of the property at $30 per acre net, but that having the proxies of over seventy-five per cent of these stockholders he would be prepared after that date to execute a quitclaim deed to the property upon the terms stated in his former letter. This communication was referred by Swarts to his attorney, Olin Wellborn, Jr., who it is admitted was the agent of Swarts to carry on the negotiations and who on February 2, 1917, wrote to Gunby regarding an abstract to the property, to which Gunby replied on February 6th, stating that he had an abstract which he could send to them if desired, but that it was apparently incomplete. In the meantime Wellborn had been corresponding with the Ventura Abstract Company and had