Stein v. Archibald

This is an action to enforce specific performance of a contract for the conveyance of certain lands to the plaintiff. The action was begun against J.F. Archibald, the vendor in the contract. He died after the trial, and the defendant, W.J. Archibald, as administrator of his estate, was substituted as defendant. Judgment was given for the plaintiff, and from that judgment and an order denying a motion for a new trial the defendant appeals.

The contract was executed on October 9, 1897, and is in the following words, the names of the parties being given instead of their designation as party of the first part or second part, respectively, as it appears in the contract, and the introductory paragraph being omitted:

"The said J.F. Archibald in consideration of the agreements hereinafter expressed to be performed by M.P. Stein or his assigns, has agreed and does hereby agree at any time within three years from this date to sell and convey to said M.P. Stein an undivided one-half interest of, in and to all those certain lands, situate in the county of Madera, state of California, and described as follows, to wit:" (here is inserted a description of the lands embracing 9680 acres).

"And if said M.P. Stein or his assigns, shall at any time within three years from this date pay to said Archibald $4 per acre for the undivided one half of all said described lands, then and in that event and upon such payment being made the said Archibald hereby agrees to make, execute and deliver to said Stein or his assigns, a good and sufficient deed of grant, bargain, and sale, conveying and assuring to said Stein, or his assigns, the undivided one half of all said described lands free and clear of any and all encumbrances and liens done, made or suffered by the said Archibald; *Page 222

"It is hereby further agreed that if during the term of this option and before said Stein or his assigns shall have made the payment above specified, a chance occurs affording to said Archibald the opportunity to sell said described lands at a sum in excess of the amount by said Archibald paid to the Stockton Savings Loan Society for said lands, then and in that event, and notwithstanding this option, the said Archibald may sell said lands and the whole thereof, but he shall pay to the said Stein or his assigns the one half of the net profits arising from such sale; provided, however, that he, said Stein, shall have an equal voice in making such sale and no sale shall be made without his being first consulted and giving consent thereto.

"It is hereby further agreed that during the life and term of this agreement said Stein is to bear equally with Archibald all the expenses incurred in farming said lands, and is to have and receive one half of the gross income arising therefrom.