Gray v. Smith

• Decision Date: 04 October 1897
• Docket Number: 359.
• Parties: GRAY v. SMITH et al. [1]
• Court: U.S. Court of Appeals — Ninth Circuit

83 F. 824

GRAY v. SMITH et al. ^[1]

No. 359.

United States Court of Appeals, Ninth Circuit.

October 4, 1897

Sidney V. Smith, and Vincent Neale, for plaintiff in error.

S. C Denson, for defendants in error.

Before GILBERT, ROSS, and MORROW, Circuit Judges.

GILBERT Circuit Judge.

The plaintiff in error was the plaintiff in action in the circuit court, brought against the executors of the last will and testament of Edgar Mills, deceased, to recover damages for the breach of a contract of conveyance of real estate. It was alleged in the complaint, in substance, that on October 7 1891, the plaintiff entered into and signed written agreements with Edgar Mills, whereby he agreed to sell and convey to said Mills, by good and sufficient deed, free of all incumbrance, and the said Mills agreed to buy from him, a certain lot of land situated on Market street, in the city of San Francisco, and that said Mills agreed to pay plaintiff therefore $120,000 in cash, and, in addition, to convey to him in fee, free from all incumbrance, certain tracts of land situate in Colusa and Tehama counties, Cal., aggregating 8,421 acres of land, all of which properties are described in the complaint; that said lot of land in San Francisco was worth to the plaintiff, on October 7, 1891, and thereafter up to the date of breach of the contract, $165,000, and that said 8,421 acres of land were at the same time worth $173,400; that the plaintiff was able, ready, and willing from October 7, 1891, to and until November 18, 1891, to sell and convey to said Mills the said Market street lot, with a good and perfect title, but that on said November 18, 1891 Mills refused to buy the same, or to accept a conveyance thereof, and refused to carry out his agreement, for the reason that the title to said lot was imperfect; that, by reason of such refusal, plaintiff suffered damages in the sum of $128,400. The defendants answered, denying that the plaintiff was able or ready or willing to sell or convey to said Edgar Mills said Market street lot by good or sufficient deed, and denying that said Mills, on November 18, 1891 refused to carry out his part of said alleged contract, and alleging that the plaintiff never at any time had any right, title, or interest in the said Market street lot, and at no time had any right or power to sell or convey the same, or to make a contract to do so. They further alleged that the title to said Market street lot, at the time of said agreements, was vested in Joseph A. Donohoe, except an estate in fee, after the termination of an estate for the life of one Mary Penniman, in an undivided one-twelfth of said lot, and that the said estate in said undivided one-twelfth was owned by one Robert Penniman and Walter Penniman; and they allege that upon an investigation of the title to the said property, and the disclosure of its condition as aforesaid, it was agreed and conceded by all parties any way interested in the said contract that the title to the said lot was not good, and could not be granted or conveyed to the said Edgar Mills. Thereupon, on October 27, 1891, the contract of sale and purchase was abandoned and rescinded, by the consent of all the parties thereto. A jury trial was waived, and, by stipulation of the parties, the cause was tried before the court.

The findings of the court, so far as they are necessary to be considered on the writ of error, are, in substance, as follows:

On September 16, 1891, Edgar Mills wrote to the plaintiff the following proposition:

'Provided, you take the following described property, situate in Tehama and Colusa counties, as part payment up to one hundred and fifteen thousand ($115,000). I hereby make you an offer to purchase the lot situate on the south side of Market street, in this city (describing the same), at the price of two hundred and forty thousand dollars ($240,000), namely, in cash $125,000, and in land, as above, $115,000. This offer to hold good for three weeks from this date, to enable you to inspect my said lands. Said lands described over page. (Then follows a description of the lands.)'

On October 6, 1891, the plaintiff executed and delivered to the said Edgar Mills a written acceptance of said offer. On October 7, 1891, said Edgar Mills and the plaintiff executed in writing a modification of the foregoing offer and acceptance, whereby the sum to be paid in cash was reduced from $125,000 to $120,000, leaving the total consideration for the Market street lot $235,000. The title to the said Market street lot, at and prior to the commencement of the negotiations, and after the same were broken off, was and remained in Joseph A. Donohoe, Sr. On September 4, 1891, the plaintiff and one J. H. Cavanagh agreed between themselves to share equally the commission payable on the sale of said Market street lot; and on October 7, 1891, the plaintiff acknowledged, in writing, that Cavanagh held an equal interest with himself in the contract with Mills. On September 18, 1891, Cavanagh made a written offer to Joseph A. Donohoe for the purchase of the Market street lot, offering to pay therefor $160,000 cash. Said offer, in writing, was delivered by Cavanagh to one Joseph A. Donohoe, Jr., who was the son and agent of Joseph A. Donohoe, Sr., Donohoe, Jr. knew nothing of the resources or responsibility of the said Cavanagh, and would not enter into a contract to sell to him, but demanded to know of him the name of the proposed purchaser, and was thereupon given the name of Edgar Mills. The said Donohoe, Jr., as agent of his father, then executed and delivered to Cavanagh the following paper:

'San Francisco, October 7th, 1891.

'I hereby agreed to sell my lot 82 6/12 feet, on south side of Market street, immediately east and adjoining the Central Park, between 7th and 8th streets, and running through to Stevenson street, in the rear, to Edgar Mills, for one hundred and sixty-five thousand dollars, U.S. gold coin ($165,000), payable on delivery of deed after examination of title, say, fifteen days from date. The purchaser to pay half of the taxes for the current year.

'Jos. A. Donohoe, Sr., 'Per J. A. Donohoe, Jr.'

On October 8, 1891, said Edgar Mills was first informed that the Market street lot belonged to said Joseph A. Donohoe, Sr. and was at the same time informed of the execution by him of the foregoing written offer upon his part to sell the same to him, the said Edgar Mills. The interest of Cavanagh in this instrument was thereafter assigned to the plaintiff. Said Edgar Mills never accepted the proposition contained in the said document executed by Joseph A. Donohoe, Sr., under date of October 7, 1891; and neither said Mills, nor said Cavanagh, nor said Gray, ever complied of offered to comply with the terms of said offer. The plaintiff had no right, title, or interest of, in, or to the said Market street lot, save such as he may have gained by or through the several documents above mentioned; and no contract existed between plaintiff and defendants' testator for the purchase of said Market street lot or otherwise, except as therein contained. The plaintiff never paid or offered to pay said Joseph A. Donohoe, Sr., the purchase price demanded by him for said Market street lot, and did not at any time have the means or ability to pay the purchase price demanded by him therefore; and plaintiff never took any steps to procure for the said Edgar Mills the title to the said Market street lot, other than by procuring the above-mentioned written offer of said Donohoe. On November 23, 1891, the said Joseph A. Donohoe, Sr., executed three several deeds of said Market street lot,-- one to Edgar Mills, one to J. H. Cavanagh, and one to the plaintiff, Albert E. Gray; tendered the same to the said several grantees, respectively; and demanded from each of them the payment of...