Porter v. Hilton

THE COURT.

A petition for rehearing was granted in the above-entitled cause to give further consideration to the questions therein presented. We are satisfied with the decision as originally written by Mr. Justice Shenk and

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herewith adopt said decision as the opinion of the court upon rehearing. It follows :

“This is an appeal by the plaintiffs from a judgment for damages in their favor in an action for rescission and general relief. The appeal is on the judgment roll alone. The material facts shown by the findings are as follows:

“On and prior to June 23, 1926, the defendant R. M. Fowlks was the owner of lots 15 and 16, block 223, Pacific Beach, in San Diego county. These will be referred to as the first two lots. On May 24, 192'6, Fowlks granted to one Earl Taylor, as agent, authority to sell said two lots for the sum of $3,000 net to Fowlks and at the same time authorized Taylor to sell two other lots in the same tract, owned by Fowlks, for the same price. On May 27, 1926, Taylor executed and delivered to one C. E. Hamilton of the real estate firm of Hilton & Hamilton, an agreement to sell to Hamilton all four lots for the sum of $7,000 to be paid in instalments, with a down payment of $100, which Taylor retained. Prior to June 21, 1926, Taylor notified Fowlks that the agreement of sale had been executed and delivered to • Hamilton. On June 21 Hamilton approached the plaintiffs Roscoe S. Porter and Johnston O. Miller, soliciting the sale to them of, and they agreed to buy, the first two lots for the sum of $7,000 on terms of $500 down and notes for $1,000 in six months, $2,750 in one year and a like amount in two years. Prior to June 23 neither Hilton nor Hamil- . ton knew of Fowlks and both believed Taylor to be the owner of all of said lots; and on that day Hamilton notified Taylor of the agreement to sell to the plaintiffs, whereupon Taylor stated to Hamilton that it would be necessary to consult Fowlks, who lived in Redlands, for approval as to the terms of sale. Taylor interviewed Fowlks, submitted to Tiim Hamilton’s proposition that the balance of $5,500 be represented by two notes for $2,750 each secured by a trust deed on the first two lots only and that the other two lots be deeded to Hilton and Hamilton free and clear.' Fowlks was unwilling to accept this security, but did agree to deed the first two lots to the plaintiffs, take the two trust deed notes for $2,750 each, assign one of them to' Hilton, and Hamilton and take a note for $2,750 from Hilton and Hamilton secured by a trust deed on the other two lots. ' This was done and the deal was closed. On November 20,