Olson v. Lovell

McFarland, J. Plaintiff brought this action to compel defendant to specifically perform a certain contract for the conveyance of land. Defendant demurred on the general ground of want of facts, and also on certain special grounds. The demurrer was sustained, and judgment was rendered for defendant. Plaintiff appeals.

It appears from the complaint that on January 21, 1890, a certain written contract was entered into, which purports upon its face to have been made by plaintiff as a party of the first part, and the defendant, C. A. Lovell, and one F. E. Judson, as parties of the second part. By this contract, plaintiff was to convey to defendant and Judson a certain tract of land in Placer County, and pay them $1,750; and defendant and Judson were to convey [507]to plaintiff a certain lot of land in Sacramento City. The contract was signed by plaintiff and by defendant, but was not signed by Judson. Judson’s name was signed to the contract by defendant, in this manner: “ F. E. Judson, by C. A. L.” There is nothing else on the face of the contract, or in any way attached to it, to intimate that defendant was the attorney in fact or agent of Judson; and he does not assume to sign Judson’s name as his attorney. And indeed it appears from other averments in the complaint that plaintiff did not rely upon any legal authority of defendant to bind Judson, but upon the probability that the latter would agree to whatever defendant might promise for him in the premises.

No fraud is alleged against defendant

It is averred that Judson resided at the time in the Eastern states; and that defendant in fact had no authority to bind Judson, who, it is to be inferred from the complaint, although not directly averred, has repudiated the contract.

It is further averred that plaintiff tendered to defendant the sum of $875, being one half of said $1,750 mentioned in the contract, and offered to grant him the undivided one half of said land in Placer County, or if defendant preferred, the one half of said land in severalty; and thereupon plaintiff demanded of defendant that he convey to plaintiff the undivided, one half of said lot of land in Sacramento, and tendered him a conveyance thereof, and demanded that he execute the same; but that the defendant refused to execute the deed to plaintiff of said undivided one half, or of any interest in said lot in Sacramento. The prayer is, that defendant be adjudged to convey to plaintiff said undivided one half of said lot in Sacramento, upon the payment to plaintiff of said $875, and his execution of a deed to the one half of said land in Placer County.