Zanger v. Eaton

PULLEN, P. J. This was an action for specific performance of an agreement for the sale of certain real property. The trial court denied relief, and this appeal was taken from the judgment.

William S. Eaton was the owner in fee of some 2,00|0 acres of land lying in El Dorado County, of which approximately 115 acres was known as Kentucky Plat, and on which C. B. Wooster held a lease and option to purchase, receiving ¡a deed therefor from Eaton on December 19, 1933.

On November 1, 1933, A. Le Roy Parkinson and Henry Gr. Zanger submitted to Eaton a written offer to purchase the property, except that portion sold or leased to Wooster, for $20,000 upon certain terms and conditions. This offer was rejected by Eaton. On November 24, 1933, Wooster who acted as agent for Eaton, transmitted an offer from Parkinson and Zanger to Eaton of $30,000 for the lands of Eaton, less a certain credit, the letter reciting, although clamed by Wooster to be a mistake, “including Kentucky Plat”. On the same day Parkinson and Zanger agreed to pay Wooster $3,500 for his interest in Kentucky Plat contingent upon the acceptance of their offer by Eaton. On December 1, 1933, Eaton replied to this offer in a letter addressed to Wjooster, wherein Eaton rejected the offer “for the property at El Dorado county” but submitted a counter-offer of $30,000 net. This counter-proposal addressed to Wooster read, “I ¡cannot accept the offer which they have made. If they wish to buy the property they can dó so on the following terms”, and then is set forth the terms and conditions of payment. This offer was accepted by Zanger, he having acquired the interest of Parkinson, in the following language: “We have been shown your letter of December 1, 1933, to C. B. Wooster, Getting forth your offer to sell all your property in El Dorado county, California. We accept your proposition ... ; we to accept title to the property showing all the exceptions set forth in the policy of title insurance ...” On December' 18th, Eaton acknowledged receipt of the acceptance, adding^ “you can of course arrange with him (Wooster) regarding thfe Kentucky Plat property if desired”. Eaton did not include Kentucky Plat in the deed tendered under the acceptance, [139]and this suit for specific performance followed. Eaton testified he did not intend the letter of December 1st as an offer but as a letter of instruction to his attorney. When Wooster exhibited the Eaton letter of December 1st to Zanger and Parkinson he stated to them, “Gentlemen, I call your attention to the fact the description in that letter is very incomplete and that you are getting under it all Mr. Eaton’s property except Kentucky Flat as described in my lease and amended lease.”