Fresno Land Co. v. McCarthy
Before: Myrick
Synopsis
Appeal from a judgment for the defendant in the Thirteenth District Court, County of Fresno. Campbell, J.
It appeared from the evidence (without substantial conflict) that the plaintiff negotiated with the defendant to sell him the land in controversy for fifty head of horses, provided the horses were as represented, and the defendant, on seeing the land, was satisfied with it; that and in pursuance of this negotiation a deed was signed by the plaintiff, and placed in the hands of its agent, Perrin, who was authorized to deliver it after examining and accepting the horses. Perrin and the defendant went to look at the horses, but saw only thirty-five head, the defendant stating that there were fifteen head more about twenty miles away, which he assured Perrin wer< fully up to the average of the horses which he had seen. Perrin thereupon concluded to consummate the trade, and gave the defendant the deed, and the defendant gave him a bill of sale of the horses—all with the understanding that defendant was to have the privilege of going the next day to see the land, and if it suited him it was to be considered a trade; but upon examining the land he was dissatisfied, and returned the deed and took back the bill of sale. Afterwards, the defendant intending to go to San Francisco, where the office of the plaintiff was, Perrin gave him the deed to be delivered at the office of the company. The defendant, instead of doing this, had the deed recorded, and claimed that it had been duly delivered.
Myrick, J.: The Court below found that the plaintiff freely and voluntarily, for a good, sufficient, and valuable consideration, executed, acknowledged, and delivered to the defendant a good and sufficient conveyance of the land mentioned in the findings, and that the deed was not procured and obtained by fraud, deceit, and misrepresentation of defendant to plaintiff, and without any consideration whatever, and was not intrusted to said defendant by an agent of plaintiff for the sole and exclusive purpose of having the same returned and delivered to plaintiff, with the distinct and express understanding by, with, and between the agent and defendant, that defendant would return and deliver the deed to plaintiff, and that defendant did not falsely and fraudulently appropriate said deed to himself and to his own use.
[312]These findings are not supported by the evidence. Upon the matters above referred to there is in the evidence no substantial conflict, and the evidence shows a state of things directly and unequivocally opposite to the facts as found.
Judgment and order reversed, and- cause remanded for a new trial.
Sharpstein and Thornton, JJ., concurred.
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