Van Buren v. Green

BARNARD, P. J.

This is an action for the rescission of a contract and for the recovery of the amount paid. On June 4, 1926, the parties hereto entered into a written contract by which the defendant agreed to sell and convey to the plaintiff a certain ten acres of land in Kern County, and also agreed to sell and convey to the plaintiff “approximately a one-sixteenth (1/16) interest in the well, pumping plant and reservoir located in the northeast quarter” of the same section, together with a right of way or easement for pipe-lines running to • the ten acres in question. The

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defendant agreed to furnish a good and sufficient conveyance and a certificate of title on receiving full payment. The plaintiff resided at Long Beach and the defendant at Delano. On December 18, 1926, the plaintiff called at the First National Bank of Long Beach and instructed the cashier to send his copy of this contract, together with the balance of the purchase price, to a bank at Delano and obtain for him the conveyances and certificate of title to which he was entitled. On that day this bank sent the amount due, together with the contract, to the Growers’ Security Bank at Delano, asking them “pursuant to the foregoing” to deliver the inclosed draft to the defendant when they had obtained a deed and a certificate of title covering the ten acres of land mentioned, also stating that they would pay the charges for recording the deed and for showing the title vested in the new owner. On January 7, 1927, the Growers’ bank wrote to the Long Beach bank inclosing a deed to the plaintiff covering the ten acres in question but not covering the interest in the well, pumping plant, reservoir and right of way. Several days later, the plaintiff called at the Long Beach bank and, upon being shown the deed, told his banker that the land was not worth a cent without water, and instructed him to write back and get the title to the water. On January 17, 1927, the cashier of the Long Beach bank wrote to the Delano bank stating that the deed had been received but that the plaintiff contended that there should have been included a conveyance of the water rights, and closing thus: “Will you, therefore, kindly have either a new deed drawn, including the water rights, or write to Mr. Van Burén acknowledging his right to this water.” On January 20, 1927, the defendant himself replied to the Long Beach bank acknowledging receipt of their letter of the 17th and stating that he was inclosing an agreement of sale and also: “and that I will convey the 1/16 interest in the well, pumping plant, reservoir and pipe lines in accordance with my original agreement”. In that letter he inclosed a separate signed statement to the effect that in consideration of $1, he thereby agreed to convey to the plaintiff a one-sixteenth interest in and' to the well, pumping plant and reservoir located on that section, with a like interest in a pipe-line and closing with this paragraph: “This conveyance to be made as soon as releases