Hibernian Petroleum Co. v. Davies

SLOANE, J.

complaint in this action alleges that the plaintiff is a córporation, and that in May, 1911, the defendant entered into a contract in writing with the plaintiff whereby he agreed that upon the payment to him of a 'bonus of ten thousand dollars he would execute and deliver to plaintiff a lease of certain land for oil and mineral purposes; that during the said month of May the plaintiff paid de

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fendant five thousand dollars of this bonus; and that on the thirtieth day of September, 1911, it tendered to the defendant the remaining five thousand dollars of the stipulated bonus, and demanded the'execution and delivery of the lease8; that defendant refused, and has ever since refused to make such lease; and that plaintiff, relying on the agreement with defendant, entered into possession of the lands in question and expended twenty thousand dollars thereon in improvements.

The action is brought to recover the five thousand dollars paid on the bonus, and the cost of the improvements made.

The case was tried on the issues made by the complaint and the denials of the answer, and the court found that it was not true that defendant entered into a contract with the plaintiff in writing, or at all, but that it was true that the defendant was paid by one H. El Sinclair the sum of five thousand dollars on account of a 'bonus for a lease of the premises in question, which sum of five thousand dollars was the money of plaintiff, but that defendant was not aware that it was plaintiff’s money. There are other collateral matters covered by the pleadings and findings, but the facts as stated cover the gist of the action.

Judgment was given for the defendant, and the appeal is taken by plaintiff on the ‘ judgment-roll, supported by a bill of exceptions, on the insufficiency of the evidence to support the findings of the court.

The only evidence introduced tending to show any privity of contract between the plaintiff and defendant was the checks by which the five thousand dollars bonus payment was made, and certain. memoranda thereon written. There were two checks, one of date of May 15, 1911, for one thousand dollars, and one of May 31, 1911, for four thousand dollars. The first check or order was as follows: “Bakersfield, Cal., May 15th, 1911. Hibernian Petroleum Company, pay to the order, of J. P. Davies, One Thousand Dollars ($1000.00). Approved: Harry E. Sinclair, President. Countersigned: Cecil H. Solt'au, Sec’y. To Bank of Bakersfield, Bakersfield, Calif.” This check contained the following memorandum, indorsed upon it at the time it was drawn, or at least before delivery to payee: “Hibernian Petroleum Company $1000, to J. F. Davies, Dr. Bakersfield, Cal., May 15th,—first installment of bonus on lease in Sunset Field, Northwest quar