Mack v. Morrison

By the Court, Wallace, J.: Dr. White, in his lifetime, sold to the plaintiff* certain “ten acre lots ” lying in Sacramento County, south of the city. The whole purchase price was two thousand dollars; six hundred dollars of this sum was paid in hand. Mack was to fay the other one thousand four hundred dollars whenever the Sutter title should be finally confirmed and a patent issued thereon embracing these lands. This is substantially [13]reqjeated in a subsequent part of the contract, in which it is provided that Mack is not to fay the one thousand four hundred dollars if the Sutter title shall be finally rejected or so confirmed as not to embrace these lands. It is then provided that “in case of the rejection of said title as aforesaid,” Dr. White is to repay the six hundred dollars. It turned out afterward that the Sutter title was not “rejected,” but was “confirmedbut so confirmed as to exclude these lands. The precise condition upon which Mack was to be released from further payment has thus happened. But he claims that he is, thereby, also entitled to receive again the six hundred dollars. If that is the real meaning of the contract, the parties have been at considerable pains to obscure, it. They say, “ and it is further expressly understood and agreed by and between the parties hereto, that if said Sutter title shall be finally rejected by the United States Courts, or, if confirmed, not embrace the lands above described, then and in that event the above obligation on the part of the said parties of the second part to pay said one thousand four hundred dollars, and interest as aforesaid, shall be null and void.” Here they might have added the words: “and said party of the first part shall also repay said six hundred dollars.” This would have expressed the agreement just as the plaintiff now claims to understand it. Instead of doing this, however, they add (immediately after the words “ null and void”) these words: that “in case of a rejection of said title as aforesaid,” Dr. White is to pay the six hundred dollars.

The parties seem to have contemplated three contingen- . cies, each 'of which was to produce a result different from either of the others:

First—The Sutter grant might be rejected in toto, in which event Mack was not only to be relieved from the payment of the one thousand four hundred dollars, but White was to repay him the six hundred dollars already received.

[14]