Montgomery v. Pacific Coast Land Bureau

Beatty, C. J. In April, 1886, the defendant, a California corporation, was engaged at the city of San Diego in the business of selling lands upon commission. On the 24th of that month, it sold at public auction to A. and S. Hart a tract of land belonging to the plaintiff for nine thousand dollars. The terms of sale were announced and advertised in advance by means of a printed catalogue, in which a number of different tracts belonging to different owners were described. At the end of each description were stated the terms upon which it would be sold, i. e., the portion of the price to be paid in cash, time of payment of balance, and rate of interest on deferred payments. The terms of sale of plaintiff’s land so announced were as follows: “ Terms, one half cash, balance in one to three years, and interest at ten per cent.” After the description of other tracts to be sold on different terms as to credits, and at the end of the catalogue, was the following:-

“ Title perfect. Instruments of sale at purchaser’s expense. Ten days allowed for search of title. A deposit of ten per centum will be required on the fall of the hammer; balance of cash payment on delivery of deed, and if not so paid (unless for defect of title), then said ten per centum to be forfeited, and the sale to be void. For maps, catalogues, and further particulars, apply to Pacific Coast Land Bureau, branch office, Sixth Street, San Diego. R. J. Pennell, Auctioneer.”

We remark, in passing, with respect to a question that seems to be raised in the agrument, that there is, in our opinion, no doubt that this last-quoted portion of the catalogue applies generally to each separate tract described therein, and not merely to that one which [287]immediately precedes it. We hold, in other words, that it states in part the terms of sale of plaintiff’s tract of land as well as of others described in the catalogue.

Such indeed seems to have been the construction acted upon by all parties to the transaction, for immediately ensuing the sale the Harts paid to defendant the sum of nine hundred dollars,—ten per cent of the purchase price, —and they at the same time placed in the hands of their legal advisers an abstract of plaintiff’s title to the land for the purpose of obtaining their opinion as to its validity. Being advised that the title was defective, they, or their attorneys, stated their objections to representatives of the plaintiff, who insisted, notwithstanding such objections, that his title was perfect, and demanded the completion of the sale. In this connection he tendered a deed of conveyance to the purchasers, to the sufficiency of which they made no objection, but which they declined to accept, solely upon the ground that the title of plaintiff was not perfect. Upon the same ground they demanded of the defendant the return of the nine hundred dollars deposited at the time their bid was accepted. In compliance with this demand, the defendant, after being notified by plaintiff not to do so, returned said nine hundred dollars to the Harts, and the plaintiff thereupon commenced this action to recover the same as money had and received to his use.