C. W. Clarke Co. v. Walker

Arising out of the same transaction, differing only in inconsequential details and presented upon identical briefs, the two above-entitled cases involve the same questions of law and may be considered in a single opinion.

In the year 1902 the state of California had selected 18,000 acres of land in Modoc and Shasta Counties as indemnity school lands. Thirty-seven different persons had applied to the state for these lands in tracts not exceeding 640 acres each. The applications had been approved by the state surveyor-general, payments in full had been made to the state, and the register of the state land office had issued to each applicant a certificate of purchase for the land described in his application, reciting that patent would issue to the person named therein, or his assignee, after the lands had been confirmed to the state by the United States.

One of these applicants was Win. L. Crayton, who received his certificate of purchase in April, 1902. Concerning the land covered by this certificate of purchase Thomas B. Walker, defendant and appellant herein, wrote the following letter in the fall of 1902:

"Mr. John A. Benson,

"San Francisco, Cal.

"Dear Sir:

"I desire to purchase from Wm. L. Crayton or his assigns the following land, to-wit: All of Sec. 21, T. 42 N., R. 7 E., M. D. M., and containing 640 acres, at a price not exceeding three dollars and seventy-five cents an acre, which amount I agree to pay for the said land, in the manner and at the times hereinafter stated.

"It is understood that the land has been purchased by said Wm. L. Crayton from the State of California and the *Page 141 latter holds and owns a full paid up certificate of purchase therefor, the title to which is based upon a State indemnity school land selection now pending before the General Land Office awaiting the approval of the Secretary of the Interior.

"You may make your own contract with said Wm. L. Clayton and buy the land as cheaply as possible, and if you obtain the same for less than three dollars and seventy-five cents an acre, you may retain and have the difference between what you have to pay for the land and three dollars and seventy-five cents an acre, any profit that you may make in this matter shall be in lieu of any commission or compensation from me to you for your services herein.

"I offer to pay for the land in the following manner, to-wit: