Pettinger v. Fast

De Haven, J. Action to recover the sum of $1,950, alleged to be due plaintiff for the balance of the purchase [462]price of land conveyed by plaintiff to defendant. The court below gave plaintiff judgment for that sum, and also denied defendant’s motion for a new trial, and the defendant appeals from such judgment and order.

The facts as found show that on November 17, 1886, plaintiff executed to appellant a deed of his farm, the appellant agreeing in writing to pay therefor the sum of four thousand 'dollars, and to give one half of all in excess of that sum which “the farm can be sold for within two years,” such additional sum “to be also a part of the, purchase price, when so sold for a larger sum.” It is also found that on September'!, 1887, “ appellant entered into an agreement in writing with one Ed. Culbert, whereby he sold to said Culbert the said parcels of land for the sum of eight thousand dollars.”

The principal question to be determined on this appeal is, whether the finding of the court in relation to the sale of the land is justified by the evidence. It was shown upon the trial that on September 1, 1887, the appellant and one Culbert entered into an agreement in writing by which the appellant “ promises and agrees to sell and convey unto the party of the second part (Culbert) and to make and execute and deliver to him a deed” of the land purchased by appellant from the plaintiff in this action, the said Culbert “ to have and to hold all and singular said premises, together with all the tenements, hereditaments, and appurtenances thereunto belonging, .... except that portion of the timber thereon hereinafter mentioned and reserved unto the party of the first part.” The agreement further recited that the appellant was to have all the timber on said land, “except that on the southern line of the mesa, adjoining the Rincon rancho, and on the east end of said mesa.”

It is clear that, under appellant’s agreement with respondent, an actual sale of the farm within the time limited was not indispensably necessary in order to establish as a fact the price for which it could have been sold, and [463]thus fix the liability of appellant thereunder. The appellant would not have been at liberty to reject any bona fide offer of purchase for a sum exceeding five thousand dollars, without the consent of the respondent. But the complaint alleges an actual sale to Culbert for the sum of eight thousand dollars, and the court so finds, and it is therefore necessary to consider whether such fact was established upon the trial.