Cooper v. Stansbury

JAMES, J.

This is an appeal taken by cross-complainant and certain of the defendants from a judgment entered in favor of plaintiff.

The action was brought to secure a decree quieting title in the plaintiff as against a claim evidenced by a certain writing which had been placed of record in the county where plaintiff’s real property was located. It was asserted that the effect of this writing was to cloud the title of plaintiff. Briefly the facts are: Plaintiff being the owner of certain real property in the county of San Bernardino, had negotiation with Charles Stansbury, the cross-complainant, whereby it was sought to effect an agreement for the exchange of the plaintiff’s property for certain corporate stocks and some real estate lying within the county of Los Angeles. Defendants Van Vranken and Webster were agents acting for Stansbury in the matter. There were other agents, Miller and Iveson, who represented Cooper. After considerable negotiation was had, Stansbury, the owner of the Los Angeles property, made a proposal in writing which set forth the descriptions of the properties of Stansbury and Cooper which it was proposed to exchange. There was one clause in this proposal, wherein the condition of Cooper’s property was referred to, which is important tó be considered. It is as follows: “All stock and tools to be left on the ranch and subject to their being now developed 120 inches of water on this 194 acres.” When this proposal was submitted to Cooper there was indorsed upon the same and signed by Cooper what purported

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to be an acceptance of the proposition, but to which acceptance was added this qualification: “I do not guarantee any amount of water on the ranch. ’ ’ After this writing was submitted to Stansbury, the parties visited the Cooper Ranch and Stansbury, who appeared to be an experienced man in that line of business, measured the head of water which was pumped from the Cooper wells and announced that it fell far short of one hundred and twenty inches; in fact, according to Stansbury’s measurement, there was considerably less than one hundred inches of water capable of being pumped from the wells. Stansbury returned to Los Angeles and on the following day his agent notified one of the agents of Cooper that Stansbury would not make the trade unless an added difference was paid to him of five thousand dollars, which he proposed to have evidenced by a mortgage. The testimony showed that one of the agents of Stansbury, together with an agent of Cooper, visited Stansbury at his office and that Stansbury was there told that Cooper would not assume any more' mortgage debt. One of the witnesses testified that Stansbury then said: “Well, I don’t care much for the ranch anyway. It will cost a lot of money to develop and to make it useful to me. ’ ’ One of the agents further testified that when he visited Stansbury at a later time and tried to come to an agreement with him regarding the exchange, Stansbury said that he would put the deal through if one thousand dollars was paid to him as additional consideration. This one thousand dollars the agents at first proposed to raise among themselves in order to carry the deal through, but this project was never consummated. The qualified acceptance of Cooper as hereinbefore referred to was signed on June 15, 1912. On the twenty-seventh day of June Stansbury wrote a letter to his agents, expressing a waiver of the water difference and announcing an acceptance of the proposed exchange proposition as made by Cooper. This notification, it seems, did not reach Cooper personally until after he had made an engagement to transfer his property to another person, which he did on July 11, 1912. This person, with whom a contract for the purchase of the Cooper property was made, was the defendant R. J. Busch. In investigating the title of Cooper at the time of the Busch transaction it was found that the agents of Stansbury had caused to be placed of record the alleged contract between Stansbury and Cooper for the exchange of