Burke v. Bours

Garoutte, J. This is an action in ejectment; defendant claims to be in possession under a perfect equitable title, and this appeal is taken by plaintiff from the judgment, upon a bill of exceptions. The cause has been in this court before (67 Cal. 447), and it was there held that the deed to defendant to the realty in dispute, made by plaintiff’s predecessor in interest, was void by reason of the fact that the grantee’s name was not inserted therein until after it was signed and acknowledged.

At the time of the alleged sale of this land, which is situated in the city of Stockton, one Arguello, who resided at Santa Clara, was the owner thereof, and Faulkner, Bell & Co., residing in San Francisco, were his agents in attending to his property interests. Respondent Bours resided in the city of Stockton, and, as the agent of Faulkner, Bell & Co., had charge of this property, collecting rents, etc. Bours and Arguello were strangers to each other.

Upon August 19,1876, the following letter was written to Bours: —

“ Mr. Arguello thinks of selling his real estate in your town, and requests us to ascertain the price it would probably realize. Yours,

“ Faulkner, Bell & Co.”

In answer, Bours replied that business was dull, and he did not think the property would sell for over five thousand dollars. This letter was forxvarded by Faulkner, Bell & Co. to Arguello, to which he replied to Faulkner, Bell & Co., among other things: “Needing some money, I wish you would communicate with Mr. Bours, and try to sell this property at a price as near five thousand dollars as possible.”

[112]This letter was forwarded to Bours by Faulkner, Bell & Co., with the statement: —

“ Trusting you will soon be able to advise the disposal of this property, we are,

“ Yours,

“ Faulkner, Bell & Co.”

To this, Bours wrote to F. B. & Co. that he had ordered an abstract of title to the property, had placed the matter in the hands of a competent broker, and hoped soon to report the sale of the property. This letter was also forwarded by F. B. & Co. to Arguello.

Shortly afterward, Bours wrote to F. B. & Co. that he had received an offer of four thousand five hundred dollars, free of all commissions, etc., for the property, and had accepted the offer, subject to the approval of the owner, and inclosed in the letter a deed to the property, to be signed and returned to him if Arguello approved the sale. The name of the grantee in the deed was omitted. This letter and deed were forwarded to Arguello by F. B. & Co.; he signed the deed and returned it to them; it was then sent to Bours, who inserted his name as grantee therein, and thereupon forwarded his personal check to F. B. & Co. for the amount of the purchase price, and they credited Arguello’s account to that extent.