Salmon v. Hoffman

Appeal from the Superior Oourt of the City of San Francisco.

In August, 1851, Salmon filed his complaint against the respondents, charging that on the 4th of July, 1849, the defendants, by their power of attorney of that date, recorded in San Francisco, authorized one Henry Fisher to dispose of certain lands in San Francisco, to which the defendants claimed title as heirs tif James Scott, late of San Francisco; that the defendants, by their said agent, contracted with the plaintiff for the sale of said lands, at the price of $34,000, whereof the plaintiff paid the defendants, through their said agent, $10,000, on the 2nd of November, 1849 ; and on the same day, the agent, in his own name and as his own act, and not in the name of the defendants, executed a deed for said lands to Mary Catharine Salmon, which deed was intended for the use of the plaintiff; that the title of the defendants never passed by said deed; that the consideration for said $10,000 had entirely failed; and that the defendants had promised to pay the same, but refused; and praying judgment for said $10,000, with interest, &c., and for an attachment. The plaintiff made affidavit that the defendants were nonresidents, and that they were indebted to him $10,000, with interest at 10 per cent, per annum from the 2nd of November, 1849, over and above all discounts, and that the same was due upon a contract for the direct payment of money.

The defendants filed a long answer, admitting the power of attorney, sale, and conveyance, as charged, and the payment of $10,000 to Fisher, but denying that the defendants received the money; and insisting that the title of the defendants passed by the deed; that the plaintiff took and held possession by virtue of the deed; that the original contract of sale,—a copy of which was annexed,—was made on the 2nd * of November, “ between Henry Fisher, attorney in fact for the heirs of James Scott, late of, &c., of the one part, and Francis Salmon, of the other part,” and by it “ the said Henry Fisher, attorney as aforesaid, sold to the said Salmon the following” 12 fifty vara lots, for $34,000, whereof $1000 was paid in hand, $9000 was payable on the 14th of that month, $12,000 in 6 months, and $12,000 in 12 months from that date; said Salmon to have possession, and pay taxes ; and on payment of said $9000, “ the said Henry Fisher is to convey to said Francis Salmon the said lots by the same title by which said James Scott held them at the time of his death, and then said Salmon is to give said Fisher notes and mortgage on said lots to secure back payments.” Signed by Salmon, and “ Henry Fisher, Att’y.” The answer also contained a copy of the conveyance, bearing the same date, but executed on the 26th of November, when the $9000 was paid. The deed purported to be between “ Henry Fisher, attorney in fact, &c., of the one part, and Mary Catharine Salmon, of the other partand by it the “ said Fisher, attorney as aforesaid,” in consideration of $34,000, sold, released, conveyed, and quit-claimed to her, in fee simple, “ all those fifty vara lots,” &c.; and was signed, “Henry Fisher, attorney in fact for the heirs of James Scott, deceased.” The answer further stated, that on the same day the deed was made, the plaintiff, as attorney in fact for M. C. Salmon, (his sister,) and in her name, executed notes and a mortgage for the residue of the purchase money, and guaranteed the payment of the notes in his own name; that in April, 1850, the plaintiff requested Fisher to procure the defendants to execute, in person, a conveyance of said lots to one Ellis; that pursuant to such request, the defendants did execute such conveyance, which was tendered to the plaintiff, in September, 1850, on payment of or security for the $24,000, which was refused; and they by their answer again offered to deliver a deed executed by themselves, on payment of the purchase money. The defendants denied any . indebtedness to the plaintiff; and set up a counter-claim against him for the $24,000 and interest.