Schmidt v. Chittenden

TAGGART, J.

Action to quiet title. Defendant Fox filed a cross-complaint alleging purchase of the property, which purchase was evidenced by a written contract signed by defendant Chittenden as the agent of plaintiff, and asked for damages in the sum of $10,000 for breach of this contract by refusal of plaintiff to convey the premises in accordance therewith. Judgment was for plaintiff on both complaint and cross-complaint, and defendant Fox appeals from the judgment and from an order denying his motion for a new trial.

Plaintiff, who was the owner of a tract of land in Vernon, Los Angeles county, containing about eight and one-half acres, on February 7, 1906, signed a writing constituting the defendant Chittenden “sole and exclusive agent” for the sale of certain property situated “in city of and county of Los

[51]

Angeles, state of California, described as follows, to wit; 8% acres fronting on Santa Fe ave. part of Chipley & Baker rancho, the said agency to continue for five days from date hereof.” The terms fixed were: “Price, $15,300. Terms, % cash—bal. 1 & 2 yrs., 6% int., or upon such other terms as may be hereafter agreed upon in writing, between the said agent and myself.” Authority is given to sign necessary contracts in accordance with above terms and to receipt for deposits of purchase money made.

On February 10, 1906, Chittenden reported the receipt of $300 cash from defendant Fox as deposit on purchase of the property; on the same day, the plaintiff and defendants coming together for negotiations, the defendants Chittenden and Fox withdrew from the negotiations and defendant Fox refused to purchase said property owing to a disagreement as to terms. Thereafter, and on the same day, the defendants Chittenden and Fox, the former assuming to act for plaintiff under the authorization mentioned, entered into a contract in writing wherein and whereby plaintiff agreed to sell and defendant agreed to purchase certain property situated in the county of Los Angeles (without mention of either Vernon or Los Angeles city), described by metes and bounds; “said to contain 8% acres, at the rate of $1800 per acre, which amounts to $15,300.” “The party of the second part agrees to purchase the said 8% acres, at the said rate of $1,800 per acre.” The terms named were $300 cash, $5,000 on transfer of deed, and mortgage to secure the balance, one-half due one year; other in two years, interest six per cent, payable semi-annually. Defendant to have right to cancel mortgage at any time.