Maxon v. Jones

COOPER, C.

Appeal by plaintiff from the judgment, and an order denying his motion for a new trial. The action was brought to recover a balance of twelve hundred dollars alleged to be due upon a contract made by defendant with one Schuller, plaintiff's assignor, whereby defendant agreed to pay said Schuller fifteen hundred dollars as commissions for negotiating a loan. The case was tried before the court without a jury, findings filed, and judgment entered for defendant. The court found:

“3.

That on the thirteenth day of March, 1896, the said D. L. Jones, representing himself to be the administrator of the estate of said J. W. Jones, deceased, and not except as representing himself to be such administrator, entered into a contract in writing employing one A. Schuller to obtain a loan for said administrator upon certain property of said estate then in process of probate, said contract being the same contract set forth in paragraph II of complaint of plaintiff herein.

“4. That on or about the twentieth day of March, 1896, said Schuller found one Bartlett Doe, who was then and there financially able to loan to said D. L. J ones, as administrator of the estate of said J. W. Jones, deceased, the money applied for by said administrator, but that said Doe was at no time ready or willing to make said loan to said administrator except upon terms and conditions other than and different from those ever agreed to by said administrator.

“That said defendant did not, as such administrator, or otherwise, at any time agree to take from said Bartlett Doe said money upon the terms and conditions specified by said Doe in his offer to loan the same.

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“o. That said Bartlett Doe did not at any time offer to or agree to make said loam in accordance with said original application or contract therefor, or upon the modified promise and conditions set forth in paragraph III of complaint herein.”

The court further found that said Doe never agreed to make said loan except upon condition that the defendant, as administrator of the estate of J. W. Jones, deceased, would procure a proper order from the superior court of San Joaquin county authorizing him, as such administrator, to execute the proper note and mortgage upon the real estate described in the complaint. That, defendant applied to the said superior court for such order, but the court refused to make it, and defendant was unable to procure it.