Campbell v. Kennedy

SLOSS, J.

In August, 1900, the plaintiffs, who were the owners of certain mining property in the county of Butte, gave to one Steifer a working bond or option, entitling him to work the property, and to receive a conveyance upon payment of nineteen thousand dollars. Except for a relatively small amount, the entire purchase price was to be paid out of the net proceeds of the mining operations to be conducted. Steifer ’s rights under the agreement passed to a corporation which he organized for that purpose. This corporation operated the mine, but nothing was ever paid to the plaintiffs from the net proceeds, if any were realized.

In 1906, the property, which remained in the possession of the holder of the option, was about to be sold under an execution issued upon a judgment against the plaintiffs. Being without means, they approached the defendant, Guy R. Kennedy, and applied to him for assistance, with the result that the parties entered into the transaction which forms the basis of the present litigation. Kennedy advanced one thousand two hundred dollars, the amount necessary to pay the judgment, and an additional $72 for taxes. The Campbells conveyed the property to Kennedy, and he gave them in return a writing whereby he agreed that whenever he sold the property, he would, after deducting and retaining the amounts advanced by Mm, give one-half of the balance of the purchase price to the plaintiffs. The complaint alleges that thereafter the de

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fendant had numerous opportunities to sell the property to various persons who had offered to purchase the same for reasonable sums, but that he had refused to accept any such offers, or to make any sale of the property. It is further alleged that shortly before the commencement of the action the plaintiff J. S. Campbell made a tender to the defendant of the full amount advanced by him, with interest, and demanded a reconveyance of the property, which offer was refused. The complaint asks judgment for the cancellation of the agreement and deed between the plaintiffs and Kennedy, and for a reconveyance, upon payment to Kennedy of his advances, with interest.

The answer put in issue various of the allegations of the complaint, and set up affirmative matter which is not material to the present consideration. The findings of the court were, in the main, in favor of the plaintiffs, and judgment was entered giving them the relief for which they asked. The defendant appeals from the judgment, and thus presents for review the correctness of the order denying his motion for a new trial, as well as that of the judgment itself. (Code Civ. Proc., sec. 956, amended 1915.)