Middleton v. Findla

By the Court, Currey, J. From the pleadings and evidence in this case it appears that in September, 1862, the respondents were partners, doing business in the City of San Francisco as auctioneers and brokers, and that the appellant, who was the owner of a storehouse and lot of land in that city, employed them to advertise and sell this property for him. The contract between the parties was, in effect:

First—That the storehouse and lot should not be sold for a less sum than twenty-two thousand five hundred dollars.

Second—That if the property was sold for that sum only, [78]the appellant would pay the respondents for their services the sum of five hundred dollars, and the expenses of advertising the sale.

Third:—That if the property was sold for a sum exceeding twenty-two thousand five hundred dollars, the appellant would pay the respondents the sum of two and a half per cent of the amount of the price for which the same should be sold, and the expenses of advertising the sale.

In pursuance of this contract the respondents advertised the property for sale at auction, and afterward sold the same to one Goldstein, who was the highest bidder therefor, for the price of twenty-four thousand and fifty dollars. Before the sale it was announced by the respondents, in the presence of the appellant, to the persons in attendance, that the purchaser would be required to deposit ten per cent of his bid immediately after the property was struck off to him, and that the title would be subject to legal investigation.

The terms of payment at which the ajopellant, by his agents, the auctioneers, offered the property for sale were half cash, and the balance in three years at one per cent per month.

The purchaser, instead of depositing ten per cent of the purchase price, deposited only five hundred dollars, with which the respondents were satisfied, as he was regarded by them as a person able at any time to respond to his engagements.

The abstract of the appellant’s title to the property was placed in the hands of Goldstein’s legal adviser for examination, who afterward decided and reported the title defective, because the copy of one of the deeds under which the appellant claimed, and which purported in the body of it to have been made by Edward Jones, appeared in such copy and in the book of records as signed by Edmund Jones. By the certificate of the proof of the execution of this deed, it appears that the execution thereof was by Edward Jones. Because of the supposed defect, Goldstein refused to complete the purchase; and after this, about the 10th of October, 1862, the appellant