McGibbon v. Schmidt

SHAW, J.

This is an action to compel specific performance of an alleged contract whereby defendant agreed to convey to the plaintiff a certain lot situated in Los Angeles. The court below gave judgment for the plaintiff and decreed specific performance of the contract. The defendant appeals both from the judgment and from an order denying his motion for a new trial.

The complaint alleges that on November 26, 1906, the plaintiff and defendant entered into a written contract whereby it was agreed that the defendant should convey to the plaintiff lot 132 in the Schmidt Heights tract, situate in the county of Los Angeles. It further alleges “that said contract was in fact signed by one Oscar E’. Schmidt, but the said Oscar E. Schmidt was acting for the defendant and said contract was in fact the contract of the defendant, duly authorized by him. ’ ’ The contract in question is as follows:

[72]

“$100.00 Los Angeles, November 26, 1906.

“Received from Isabella McGibbon, per James D. McGibbon, the sum of one hundred dollars, making in all eight hundred dollars, which amount is the first payment on lot 132 in the Schmidt Heights tract; next payment of principal being due December 1st, 1907, amounting to eight hundred dollars, and interest, to start from December 1st, 1906, at six per cent, on sixteen hundred dollars, interest payable •every three months.

“(Signed) Oscar E. .Schmidt.” Interest payments of twenty-four dollars each were made thereafter on May 31, September 3, and November 26, 1907, by checks drawn in favor of the defendant, but delivered to Oscar E. Schmidt by James D. McGibbon, who represented the plaintiff, his sister, in-all her transactions relating to the lot in controversy. Two of these checks were indorsed by,the defendant. They were as follows:

“Merchants National Bank No. 303

of Los Angeles

“Los Angeles, Cal., May 31st, 1907. “Pay to order of Fred Schmidt, $24 00/100

Twenty-four..............................00/100 Dollars

Int. to June 1st, 1907—$1600. on bal. purchase price, being $1600., on lot 132 Schmidt Heights Tract, owned by Isabella McGibbon.