Wilson v. Southern Pacific Land Co.

FINCH, P. J.

This appeal is from the judgment rendered at the second trial of the action. At the- first trial the court granted defendant’s motion for a nonsuit. The judgment was reversed on appeal. (46 Cal. App. 738 [189 Pac. 1040].) In the opinion of the appellate court the issues and the law applicable thereto are stated. Appel

[546]

lant’s principal contention is that the evidence is insufficient to support the findings and it is sufficient herein to examine the evidence produced at the second trial..

Plaintiff testified that H. C. Farnum purchased the lands in controversy for plaintiff in January, 1914; that plaintiff did not view the lands or make any investigation thereof but relied on Farnum’s representations ; that he did not know prior to the purchase that Farnum was the agent of defendant to sell the lands. He further, testified: “At the time the applications were signed in my behalf for the purchase of these properties, there had been a conversation between me and Mr. Farnum as to my giving him an interest in the profits if the land was sold. When I made up my mind to purchase the property I fixed up that memorandum for Mr. Farnum, which is plaintiff’s exhibit No. 5, bearing date February 2, 1914. I wrote the memorandum in pencil first. Later it was copied and I put down the date.” The memorandum referred to by the witness reads as follows:

“Memorandum of Charles S. Wilson regarding the following described land. The east half of section 25, 4 south, 5 east, S. B. M., Riverside County, California. The above-described land was acquired through H. C. Farnum as my agent, and he is to have one-fourth of the profits which may be realized on sale thereof, after deducting all moneys paid or expended thereon by me, and interest at ten per cent per annum, provided said land can be sold at a profit on or before one year from date of contract of sale, and Farnum can have a one-fourth interest in the land by paying one-fourth of all money expended, with ten per cent interest on same within same time.

“Charles S. Wilson, February 2, 1914.”

Plaintiff testified that he did not inspect the land until in April, 1916; that he first learned that Farnum had acted as agent of defendant in the sale of the land and had received a commission for the sale, in February, 1917, and that he immediately offered to reconvey the property to defendant and demanded the return of the moneys paid by him on the purchase price thereof.