Woodard v. Grover

MELVIN, J.

This is an appeal from an order denying the motion of defendants for a new trial. Plaintiff sued to enjoin defendants from trespassing upon certain property in San Mateo County, and particularly to restrain them from cutting and removing timber. Defendants answered, admitting plaintiff’s ownership of the land in question, but claiming, under a purported contract, set forth by copy in their answer, the right to cut and remove the timber. Plaintiff by affidavit under section 448 of the Code of Civil Procedure denied the due execution and delivery of the written instrument, and challenged its genuineness, stating that although he had on April 17, 1905, signed in duplicate and acknowledged such a writing in which M. A. Grover and M. A. Littlefield were described as parties of the second part, one copy of the instrument had been mutilated by substituting the name of E. S. Grover for that of M. A. Grover. He further deposed

[582]

that he had never agreed to such substitution; that through his agent he had so notified D. W. Grover and C. L. Little-field; that the alleged contract had never been executed in duplicate and deposited in a certain bank in accordance with its provisions; and that on or about November 14, 1905, he had notified the said D. W. Grover and C. L. Littlefield that all negotiations with reference to the contract were at an end.

The case was tried and among the findings in the plaintiff’s favor was one that the alleged agreement set out in the answer between plaintiff and M. A. Littlefield and E. S. Grover was never executed nor delivered. It is not necessary to review the alleged contract, which is quite lengthy, as we agree with the finding that it was not duly executed nor delivered. Suffice it to say that it was drawn with the design of permitting the parties of the second part, under certain restrictions as to time and obligations with reference to building a sawmill and constructing a dam, to enter upon Woodard’s property for the purpose of cutting a large amount of timber.

In the latter part of 1904, Dwight W. Grover and C. L. Littlefield met plaintiff in Santa Cruz, and after some preliminary conversation Woodard submitted to them a proposition in writing, setting forth the terms upon which he would contract "to sell them the timber on the land in question. Several drafts of the proposed contract were drawn, and according to Woodard’s testimony it was agreed that, owing to certain litigation in which Grover and Littlefield were engaged, the contract should be executed by their wives. Their testimony differed from his in one radical respect. They stated that Woodard expressed a willingness for them to insert in the contract the names of any persons whose power of attorney they might obtain. Acting upon this theory, they caused the name of Mr. Grover’s daughter, E. S. Grover, to be substituted for that of her mother who had refused to sign the agreement. Defendants Hammer and Armstrong are parties to the action by reason of their purchase of an interest in this alleged contract.