Menveg v. Fishbaugh

JAMISON, J.,

pro tem.

This is an action for specific performance. Judgment was rendered in favor of plaintiff and from this judgment defendants have appealed.

Substantially, the facts are as follows: On February 14, 1927, appellants Rufus H. Fishbaugh and Rosella S. Fishbaugh, residing at Markle, Indiana, were the owners of two certain lots in the city of Wilmington, Los Angeles County, California, and on that day appellant Ernest C. Fishbaugh, the son of the said Fishbaughs, without the knowledge of his said parents, signed a written contract by the terms of which he agreed to sell to respondent the said two lots for the sum of $4,000.

Respondent signed the said contract as purchaser. It was also signed by T. C. Thompson & Company by E. A. Murphey as agent. At the time this agreement was executed Ernest Fishbaugh was paid $100 and same was credited to respondent as a deposit on account of said purchase price.

On the same day this contract was signed Ernest Fishbaugh sent a telegram to his father stating that he had sold the lots for $4,000 and for him to send deeds and papers at once, and on the next day he received an answering telegram from his father congratulating him on the sale, and stating that he would send deed at once. The deed referred to in this telegram was the deed by which Rufus Fishbaugh and wife had acquired title to said lots. Shortly thereafter Rufus Fishbaugh mailed this old deed and guarantee of title to his son at Los Angeles.

On February 20, 1929, L. M. Volker, the secretary of Ernest Fishbaugh, mailed said documents to Thompson and Company. On February 23, 1929, Thompson and Company mailed a letter to Rufus Fishbaugh, addressed to him at his home in Indiana, in which they acknowledged receipt of the said deed and title guarantee covering the two lots in Wilmington which they had sold through his son and stating that they had placed the escrow instructions with the Bank

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of Italy, Wilmington branch, under escrow No. 5229 and that said bank was on that day sending them seller instructions and papers for their signatures. On February 25, 1929, W. M. Stamp, assistant cashier of said bank mailed a letter to Bufus Fishbaugh inclosing sellers’ escrow instructions and a deed for said lots, with request that said Bufus Fishbaugh and wife sign and acknowledge the said deed and stating that as soon as he received back said documents he would proceed to close said escrow. On March 6th, Thompson and Company sent a telegram to Bufus Fishbaugh, in which they notified him that said bank had not received back the said documents and on March 7th, Thompson and Company received an answer to their telegram from Bufus Fishbaugh in which he stated that said documents were mailed to his said son on February 28, 1929.