Marr v. Rhodes

VAN DYKE, J.

Prior to September 10, 1895, the appellant was the oxvner of a tract of land in Santa Clara county containing about twenty acres, on which there xvas a fruit orchard, and respondent was the owner of some improved property in Riverside county under rental and some unimproved property in Los Angeles county. At that time the parties agreed upon the 'exchange of their properties, the appellant selling his tract of land in Santa Clara county to the respondent, and the respondent selling his Riverside and Los Angeles property to the appellant, and also assigning to appellant certain certificates of mining stock, and a payment in cash of seven hundred and. fifty dollars as the difference between the properties, and a v/ritten agreement was entered into between the parties; and at the same time the lease of the Riverside property was assigned to the respondent. Deeds were made by the respective parties conveying the respective. pieces of property according to said agreement, which deeds were left in the hands of C. D. Wright to be delivered when the title to said respective pieces of property should be made satisfactory. After the ex-

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eeution of the papers and the delivery of th'e deeds in escrow, the parties on the same day went upon the property in Santa Clara county and the appellant pointed out and explained to the respondent what he should know concerning the orchard property in question, as the respondent did not live in California, but in Illinois. The appellant also at the same time recommended one Rose, who had previously cultivated and cared for the orchard under his, appellant’s, employment, as a good and competent man to look after and cultivate the place for the respondent, and it was agreed by the parties at the time that appellant was to pay the taxes on the Los Angeles and Riverside property, and respondent was to pay the taxes and expenses on the Santa Clara property, which was done; the expenses of cultivating and caring for the orchard were to be paid by the respondent. Shortly after this the appellant saw Rose, the man whom he had recommended, and informed him of the exchange of properties, and that thereafter he would be working for Mr. Marr, and not for himself, and directed him, Rose, to attend well to the orchard and that expenses would be paid by Mr. Marr. From that time Rose understood that h'e was working for Marr, and not for Rhodes, and the bills for the expense of caring for the orchard were sent to Marr, either directly or through Rhodes, which bills Marr paid.