Niles v. Hancock

ANGELLOTTI, J.

This action was brought to specifically enforce an alleged agreement for the sale by defendant to plaintiff of a tract of land in Los Angeles County. Defendant had judgment, and plaintiff appeals from the judgment and an order denying his motion for a new trial.

The questions involved in this appeal arise upon the rulings of the trial court sustaining objections to the evidence offered by plaintiff.

Practically all of the evidence offered was excluded by such rulings. As there was no evidence actually introduced tending to sustain any of the material allegations of the complaint, and as the burden of proof was on the plaintiff, there is of course nothing in the contention of plaintiff that the evidence was insufficient to sustain the findings, and the twenty specifications of such alleged insufficiency need not be considered.

The theory upon which the trial court sustained objections to practically all the evidence offered by plaintiff was, that the same did not prove a contract in writing between the parties for the sale of the land involved. The specifications of alleged errors of law are entirely sufficient to enable the court to review the material rulings of the court. It was incumbent

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on the plaintiff, under the provisions of section 1741 of the Civil Code and section 1973 of the Code of Civil Procedure, in order to maintain his action, to show a contract in writing for the sale of this land. Certain letters and a telegram were relied upon as constituting such a contract, and these were offered in evidence as an entirety, and the first specification clearly assigns the ruling of the court thereon as error. Prom these letters and the telegram the following facts appear: Plaintiff resided in Los Angeles County, California. Defendant resided in New Hampshire. On March 27, 1900, plaintiff wrote to defendant, asking him if he would sell to him one hundred to one hundred and fifty acres off the westerly side of lot 3 of La Brea Rancho, which lot, the letter stated, contained two hundred and ninety-two and fifty-four-hundredths acres, upon about the same terms as he sold lot 2 to A. M. Stephens. On April 21, 1900, he again wrote, stating that he had theretofore written to him and had not heard from him. On April 30, 1900, defendant wrote to plaintiff, stating that Mrs. Ida Hancock had a power of attorney to act for him, to lease or sell land; that he did not know when the lease on No. 3 expired; that if he should conclude to sell, he would want to sell the whole lot; and that if plaintiff wished to buy, he would make a price and let Mrs. Hancock know, and plaintiff could do the business with her. On May 5, 1900, plaintiff wrote defendant, saying he would be pleased to buy the whole lot, asking him to make the best price he could afford to, and he would finish the business with Mrs. Hancock. On May 14, 1900, defendant replied, saying: “My price is $100 per acre. I may conclude to take less later. But that is the way I feel now. Please inform me soon if you want it at that price. ’ ’ Replying May 22,1900, plaintiff offered sixty-five dollars per acre, two thousand dollars cash within ninety days, balance same time, terms, and conditions as sale of lots Nos. 1 and 2, stating that this was a fair offer, and expressing the hope that defendant would accept the offer. On June 1, 1900, defendant replied, saying that he thought his price was low, that he should want one fifth down, and that if plaintiff should buy he wished him to ask Mrs. Hancock about the leases given, so that everything would be satisfactory. On June 9th plaintiff again wrote, saying in effect that the price was too