Hooe v. O'Callaghan

[569]

KERRIGAN, J.

This action was brought by Raleigh P. Hooe, as assignee of his wife, Etta Mae Hooe, against defendant Daniel 0 ’Callaghan, to recover $500, alleged to have been received by defendant from E. J. Campion, the intervener, for the use of Mrs. Hooe.

At the conclusion of the introduction of evidence, the court, being of opinion that no issue or question or fact was presented for determination, instructed the jury to return a verdict for Campion, the intervener, and against the plaintiff and defendant. This was done, and in due time a judgment was accordingly entered. This is an appeal by plaintiff from an order denying his motion for a new trial.

The -undisputed facts of the case are briefly as follows: On April 11, 1906, Etta Mae Hooe, through her agent, authorized in writing Daniel O’Callaghan, a real estate agent, to sell the real estate described in the complaint for the sum of $10,000 net. On April 14, 1906, O’Callaghan procured Campion, the intervener, to make an offer of $10,500 for the land, and to deposit with him $500 on account of the purchase price, with the understanding that Campion was to have thirty days to examine the title, and if the title was found defective, and could not be perfected within sixty days, the deposit was to be returned. On April 17th following, O’Callaghan informed Mrs. Hooe, through her agent Raleigh P. Hooe, of said offer by Campion and of its terms, and she accepted it in writing, and agreed, upon receipt of $10,000, to convey the property to Campion with perfect title, free and clear of encumbrances. On the next day the greater part of the records in the office of the recorder of the city and county of San Francisco (where the property was situate) were destroyed by fire.

The evidence further showed that O’Callaghan was employed as exclusive agent of the assignor of the plaintiff to sell her property; that Campion was at all times ready, willing and able to purchase said property upon the conveyance to him of the aforesaid title.

Upon these facts we are of opinion that plaintiff had no right to the $500 deposited, and that the action of the trial court in directing the jury to return a verdict in favor of Campion was correct.

It was impossible for Mrs. Hooe, by reason of the destruction of the public records, to convey to Campion a good or