Strait v. Wilkins

JAMES, J.

This action was prosecuted for the purpose of securing damages alleged to have been suffered by the plaintiff through the failure of defendants to convey certain real property. Judgment was in favor of the defendants, and a motion for a new trial having been made, this appeal was taken from the judgment and from the order denying the motion.

On the nineteenth day of June, 1907, plaintiff and defendant Mary A. Wilkins entered into a contract, which was expressed in writing, whereby an exchange of properties was agreed to be made. In that agreement it was recited that the property of plaintiff was valued at six thousand five hundred dollars, and the property of said defendant at ten thousand five hundred dollars. The property of plaintiff was . subject to a mortgage lien of three thousand dollars. In order to equalize the values it was agreed that plaintiff should pay five hundred dollars in cash and give back a mortgage on the property which he was to secure from said defendant in the sum of six thousand five hundred dollars, and that plaintiff’s property should be received by the said defendant subject to the said mortgage of three thousand dollars. Defendant Mary A. Wilkins refused to carry out the agreement, and it was alleged by plaintiff that he thereafter sold his property by exchanging the same for an orange ranch and that he received in exchange the highest market price obtainable, which he alleged to have been the equivalent of-five thousand dollars had the consideration received been represented by cash. He alleged that the property of the defendant Mary A. Wilkins had, at all times material to the contro

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versy, a market value of more than twelve thousand dollars. He further alleged that defendant Thomas Wilkins was the husband of defendant Mary A. Wilkins, and that in fact the property considered in the contract mentioned to be that of the said Mary A. Wilkins, was the property of Thomas Wilkins, and that the wife was acting, when she entered into the agreement referred to, as the undisclosed agent of her husband. The defendants answering,, admitted the execution of the contract as alleged in plaintiff ’s complaint and admitted the breach thereof, and took issue as to the respective values which the plaintiff in his allegations had assigned to the several properties. Other denials were made which presented issues not necessary to be considered, in view of the conclusions which have been arrived a: upon the matters already suggested. The court found upon sufficient evidence that the value of plaintiff’s property at the time of the alleged breach of contract was the sum of six thousand dollars, and that the value of the property of defendants on the same date was eight thousand dollars. As plaintiff was to pay five hundred dollars in cash and give back a mortgage against the property secured from defendants for the sum of six thousand five hundred dollars, and a mortgage of three thousand dollars .was to remain and be assumed by defendant Mary A. Wilkins against the property of plaintiff, in determining as to whether any damage had been suffered, there should be added to the value of six thousard dollars, as found by the court to be that of plaintiff’s property, the sum of five hundred dollars and the difference between three thousand dollars and six thousand five hundred doll irs, which total would more than equal the sum of eight thousand dollars found to have been the market value of defendants’ property. Upon this calculation, and as based upon the facts found, the court was correct in concluding that plaintiff had not suffered damage. This conclusion renders it wholly immaterial as to whether or not the finding made by the trial judge that plaintiff was in no wise deceived by any act or omission on the part of defendant Thomas Wilkins as to the latter’s interest in the property, was justified by the evidence. It may be said that that finding does not appear to be sustained by the proof made.