Wiard v. Brown

McKee, J.: This is an appeal from a judgment, directing a paper, which constituted the subject-matter in controversy between the parties, to be delivered up and canceled, and from the order denying a motion for a new trial.

The notice of intention designated as grounds on which the motion for a new trial would be made: insufficiency of the evidence to sustain the findings, and errors in law occur[195]ring at the trial and before judgment. But there is no bill of exceptions or statement on motion for a new trial, and consequently no assignment of errors to be found in the transcript. The case is, therefore, before us on the judgment roll only.

By the roll it appears that the object of the action was to obtain a decree for the cancellation of the following paper, which was signed by the plaintiff, viz.:

Oakland, July 18th, 1877.

“ In consideration of one dollar to me in hand paid, the receipt of which is hereby acknowledged, I hereby contract and agree to sell H. S. Brown, his heirs or assigns, about fifty-six acres of my land, including race-track and improvements, for one hundred and twenty-five thousand dollars, 17. S. gold coin, twenty-five thousand dollars to be paid on or before October 1st, and the balance to be secured by mortgage on said land.”

The complaint alleges, and it is not denied by the" answer, that the paper was executed without consideration, and was never delivered to the defendant Brown; and the Court below found, in substance, that it was only a proposal or offer in writing, made by the plaintiff, and given to the defendant Kennedy, who, as the plaintiff believed, was acting as his agent to communicate it to Brown. Kennedy, having received it for that purpose, sent it to Brown, who read it and approved of the form of it, but immediately sent it back to Kennedy without assenting to its terms, or accepting or agreeing to accept it, and Brown never did, by .word or act communicated directly or indirectly by him to the plaintiff, accept the same or agree to accept it.

After the paper had been returned to Kennedy, he denied that he was acting as the agent of the plaintiff, and kept possession of the paper, had it acknowledged by an attesting witness, and recorded, and gave out that it was a subsisting contract between the plaintiff and Brown, in which he and one Putnam were interested with Brown. But neither Brown, nor Kennedy, nor Putnam ever, by word or act, communicated to the plaintiff, accepted, or agreed to accept the proposal. There was, therefore, no mutuality between them, or any of them, and the plaintiff.