Langan v. Mariposa Commercial & Mining Co.

[72]

BEASLY, J.,

pro

tem.

This is an appeal by plaintiff from a judgment entered pursuant to an order granting defendant’s motion for a nonsuit. Among the grounds of the motion was that of failure to show either a sufficient offer to perform the contract which was the basis of the action, or readiness or ability to perform the conditions thereof. The contract declared upon related to the purchase by William H. Cook and S. Webber Parker, through their agent, Gen. William IT. H. Hart, of certain property of the defendant known as the “Mariposa Grant” and situated in Mariposa County, California. The proposed deal fell through and Cook and Webber assigned their rights under the contract to the plaintiff Langan, who began this action for damages for breach of the contract.

The main reliance of the plaintiff was upon an allegation that Cook and Parker having performed all the conditions of the contract binding upon them, the defendant repudiated the contract and refused to perform. The record is voluminous, the evidence consisting of innumerable letters, lengthy documents, and considerable oral testimony. Much space is devoted in the briefs to arguments upon nice questions of technical pleading, mainly directed to a variance which defendant’s counsel insist existed between the third amended complaint, on which the case was tried, and the proofs offered at the trial.

While we have not before us the reasons of the trial court for granting the nonsuit, it seems to us that the order was based upon very simple questions of law and fact which must, on account of the condition of the record and the impossibility of rehearsing all the evidence, be rather briefly stated here.

On the twenty-sixth day of February, 1913, General Hart wrote the defendant a letter requesting the terms of sale of the Mariposa Grant. George E. Webber, president of the defendant corporation, replied on February 27, 1913, offering on behalf of the company to sell the property for four hundred thousand dollars, five thousand dollars of which was to be paid on the fifteenth day of March, 1913, in cash, and ninety-five thousand dollars additional on June 15, 1913, also in money, and the balance of the purchase price of three hundred thousand dollars was to be paid in three equal annual payments commencing June 15, 1914. Among the other conditions of