Pierce v. Lukens

CHIPMAN, C.

This is an action to recover from defendant the consideration paid by plaintiff to defendant for the purchase of certain bonds of the Perris Irrigation District.

It is alleged in the complaint that “in order to induce this plaintiff to purchase said bonds, the said defendant repre-' sented and promised in writing to this plaintiff that he, the defendant, would buy the said bonds all back from plaintiff in three years after the purchase and pay the plaintiff the price which plaintiff paid to defendant therefor.” Judgment passed in favor of defendant, from which and from the. order denying his motion for a new trial plaintiff appeals.

Finding II is as follows: “That at the time of said sale and as a part of the transaction, the said defendant offered to. buy back from said plaintiff the said bonds at any time within three years after their purchase, which would not be later

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than July 8, 1896, and pay the plaintiff the price which plaintiff paid defendant therefor.

That plavntiff at the time of purchase did not agree to resell said bonds, but reserved until July 8, 1896, to determine whether he would resell the same to the defendant on the terms offered. That thereafter, and about the 10th day of June, 1896, and nod before, said plaintiff notified defenda/nt of his acceptance of defendant’s offer to repurchase said bonds.”

The court also found (finding III) that none of the bonds were tendered to defendant by plaintiff on July 8, 1896, nor at any time until May 1, 1897, when he made tender, which was refused hy defendant;

“that said plaintiff had not been prevented by the defendant from at any time tendering him said bonds.”

Appellant contends that the findings stated above in italics are contrary to the evidence,

The entire evidence is found in certain letters.

Defendant’s offer to sell was made in his letter dated Pasadena, California, June 14, 1893, to plaintiff at Boston, Massachusetts. In this letter defendant assures plaintiff that the bonds are valid, and that “if there was a shade of doubt I would not offer them to any one.” lie adds: “I will agree to buy them all back from you in three years at what you pay, for I am preparing to sell my real estate as fast as I can to advantage and get everything in bonds.” To this letter plaintiff replied by letter dated June 24, 1893, in which among other things he says: “ . . . taking into consideration your agreement to buy back in three years the Perris bonds, I will now take some of them (although now I do not expect to ask you to carry out that agreement). ’ ’