Burke v. Bours

Harrisok, this action was here upon the last appeal (92 Cal. 108), the facts before the court were that Bours had been employed by Faulkner, Bell & Co., who were agents of Arguello, to make a sale of the land, and had reported to them a sale thereof for the sum of four thousand five hundred dollars, sending at the same time a form of a deed to be executed by Arguello, without, however, inserting the amount of the consideration, or the name of the grantee; that Arguello filled in the amount of the consideration, and executed the deed without inserting the name of any grantee; that when Bours received the deed, lie caused his own name to be inserted therein as grantee, and sent his check for the amount of the purchase-money to Faulkner, Bell & Co., who accounted for the same to Arguello. The judgment of the court below was reversed upon the grounds that Bours was to be regarded as the agent of Arguello for making a sale of the land, and could not, as such agent, make a sale to- himself. After the cause went down another trial was had, and in addition to the facts found upon the preceding trial, the court found that when Bours sent the deed to Faulkner, Bell & Co. for execution, he had negotiated a sale of the property to one Ahumaja for the sum of four thousand five hundred dollars, but that when he received the deed, after it had been signed by Arguello, Ahumaja refused to consummate the purchase; that thereupon Bours had his own name inserted as the grantee in the deed, and wrote to Faulkner, Bell & Co., informing them of his failure to complete the sale, and “ that he had had his own name inserted in said deed as grantee, and that if this was agreeable to Mr. Arguello, he would take said property and pay the said sum of four thousand five hundred dollars therefor, and that if it was not agreeable to Mr. Arguello, he .would return the said deed to him”; that a few days thereafter he received a letter from Faulkner, Bell & Co. inclosing one from Arguello, in which Arguello stated “ that he was satisfied with Mr. Bours as the purchaser of said property, and that he was glad he had purchased it, and all that he (Arguello) wanted was to receive his [175]money”; that upon the receipt of this letter Bours caused the deed, which he had in the mean time kept in his possession, to be placed of record, and immediately remitted the four thousand five hundred dollars to Faulkner, Bell & Co., and entered into possession of the property, and has since remained in possession of the whole thereof; that upon the receipt of the money by Faulkner, Bell & Co., they informed Arguello that they had received from Bours the sum of four thousand five hundred dollars as the proceeds of said property, and had placed the same to his credit, and that Arguello immediately acknowledged the receipt of such information. The court also finds “that the said Jose B. Arguello, prior to the payment of the said purchase-money by the said Bours, had full knowledge and notice that said B. W. Bours’ name had been inserted in said deed as the grantee therein named after the signing thereof; and at the time of the receipt of said purchase price said Arguello had full knowledge and notice that said Bours was the grantee named in said deed, and had full knowledge and notice of all the facts and circumstances surrounding the said transaction.” Judgment was thereupon rendered in favor of the defendants, and the plaintiffs have appealed therefrom, bringing up the evidence in a bill of exceptions, and specifying therein that it is insufficient to sustain certain of the findings. There was, however, testimony before the court below supporting the above findings, and the decision of that court, both upon' the weight of this testimony, as well as upon the credibility of the witnesses, cannot be reviewed here.