King v. Wise

Appeal from the District Court of the Twelfth Judicial District, City and County of San Francisco.

On the 23d of March, 1869, the defendant proposed to plaintiffs Crosett and King to unite with them in the purchase of a tract of thirty-six acres of land, in Alameda County. They agreed to unite with him in the purchase, and each was to furnish one third of the purchase money, and the defendant was to conduct the negotiations, and buy the land at the least price for which it could be purchased. Defendant represented to Crosett and King that J'. Hardy owned the land, and that it could not be purchased for less than six hundred and fifty dollars per acre, and that the terms of purchase were five hundred dollars down and six thousand dollars in ten days, and the balance in periodical installments of about two thousand dollars each. On the same day Crosett and King paid defendant three hundred and thirty-three and thirty-three one hundredths dollars, being two thirds of the five hundred dollars. One Tyler was the real owner of the land, and Hardy had no interest in the matter, but acted as defendant’s agent and trustee; and defendant, on the said twenty-third of March, gave Hardy the five hundred dollars, who, on the same day, paid it to Tyler, and took from Tyler a contract to sell the land at five hundred dollars per acre, payable in periodical installments, of which the first was three thousand dollars, payable ten days thereafter. Four days thereafter defendant, without consultation with ' Crosett or King, sold his interest in the transaction to plaintiff Foster.

The suit was first commenced in the name of Crosett and King, but Foster was, afterwards, by consent, made a joint plaintiff.

On the third day of April thereafter Crosett, King, and Foster, by direction of defendant, executed with Hardy a contract for the purchase of the land, at six hundred and fifty dollars per acre, and paid him four thousand dollars as an installment of the purchase money, being two thirds of six'thousand dollars; and Wise and Foster also paid Hardy two thousand dollars, on the same account, and Hardy paid one half, to wit, three thousand dollars, to Tyler, and took from Tyler a contract for the purchase of the land at five hundred dollars per acre, payable thereafter in installments, and paid the remaining three thousand dollars to defendant. On the thirty-first of May thereafter, Hardy assigned.to Crosett, King, and Foster, his contract with Tyler, and Crosett, King, and Foster, jointly, assumed to pay the obligations of Hardy to Tyler. At the same time, Crosett, King, and Foster executed to Hardy four promissory notes for the aggregaté sum of two thousand four hundred dollars, payable on the respective days of August 3d and 'December 3d, 1869, and the 3d day of April and 3d day of August, 1870. .The notes were intended to represent the unpaid difference between the price Hardy agreed to pay Tyler for the land and that which the plaintiffs agreed to pay Hardy. The plaintiffs knew when they made the notes that they were, for the benefit of Wise, and that Wise would receive the money paid óh them. Hardy immediately assigned the notes to the defendant Wise. When Crosett & King executed the contract for the purchase of the land, and paid the money to Hardy, they were ignorant of the fraud Wise was practicing on them. When this action was commenced, the plaintiffs had not returned the land to either Hardy or defendant, or offered to rescind the contract of purchase. Foster was cognizant of all of Wise’s acts, and was not deceived.