244 F. 641 | 9th Cir. | 1917
(after stating the facts as above). [1,2] Counsel for defendant has earnestly contended that the evidence was insufficient to sustain a verdict. One of the witnesses for the government testified to this effect: That he was a farmer and mechanic, and about 1909 he bought seven acres of this banana land from C. P. Bowers & Co.; that his transaction was with C. P. Bowers, to whom he paid $1,000 on the purchase; that there was $400 still due, and he sent an agent to Bowers to endeavor to buy only five acres, but failed to adjust the matter as desired, and thereafter paid the $400 still due to Bowers; that he dealt principally with Gillespie, an agent of Bowers ; that he received certain circulars through the mail before he made the purchase and a contract, and that he discussed the contract with Bowers, to whom he paid the money in June or July, 1909. The contract is a receipt of a deposit to secure the described quantity of land in the “C. P. Bowers & Co. Banana Plantation,” etc., subject to certain conditions. It is recited that, payment having been made, the property will he granted “by good and sufficient deed of conveyance, the above-named lessee grantor furnishing unlimited certificate of title showing title to said property free and clear of incumbrance, within 10 days from date.” The contract is signed “C. P. Bowers, Pres.” To the contract was attached a “rider,” wherein C. P. Bowers & Co. agree to plant the acreage described, within a month from date of the contract, to banana shoots, not less than 200 to the acre, and irrigate, maintain, and market the first year’s crop without additional expense other than payment in full of the purchase price, and to continue marketing
“Well, I paid Mm $400, and lie acknowledged receipt of it, and then I says, ‘This circular says that as soon as I make the last payment on it you will hand me the deed. I would like to have the deed.’ ‘AVell,’ he says, ‘X can’t do it just now.’ ‘Well,’ I says, ‘Why?’ Well,’ he says, ‘it takes some time to get a deed made in Mexico.’ Well,’ X says, ‘why did you print it in your circulars?’ and he says, ‘Oh, you ought to understand anything in a circular ain’t law and you don’t have to go hy it. We have to go by things that we can.’ Well,’ I says, ‘how long before you can get it?’ ‘Well,’ he says, ‘I d.on’t know, it might take two or three months.’ I says, ‘I am going away; I have done made my arrangements to go back to Georgia, and I would like to know about the matter.’ ”
This witness further said that Bowers told him that Gillespie was his agent. On July 16,1909, Bowers wrote to Hughston that he was entitled to 7 acres in the banana plantation, and said:
“Your deed for the same will be ordered up with the next allotment of these documents, and presented to you for your signature just as soon as practical.”
On December 17, 1909, Bowers wrote Hughston that he hoped to have the deed for the 7 acres soon, but he doubted whether he could give to Hughston a “river frontage as originally planned,” unless he took up 10 acres, and would like to know if Hughston desired the additional 3 acres. On December 27, 1909, he wrote to Hughston that the deed for the 7 acres would be issued and forwarded for his signature “just as soon as practical,” and added that it sometimes took as long as 9 or 10 months to have the documents issued, recorded, etc., in that country. On February 19, 1910, Bowers wrote him that it was impossible for him to tell him exactly when he would have the deed for the 7 acres, that he was hurrying things, “and rest assured that I will have it in your hands at the earliest possible moment.” Mr. Hughs-ton testified that he never received any deed, but about April, 1914, a month before the trial of the defendant was begun, he received a letter and deed for 7 acres and turned the papers over to the district attorney. Witness said the deed did not cover the land he bought, nor did it obligate Bowers to cultivate as required by the original contract made. On cross-examination he testified that there was a mistake about his having made a contract to buy 10 acres; that Gillespie put him down for 10 acres, but that he didn’t want that much, and after a little squabble he adjusted the matter with Bowers by agreeing to take 7; that he called on Bowers about the delivery in the matter of the deed, and Bowers told him that he was having trouble about getting the deed from Mexico; that he never accepted the deed sent to him in April preceding the trial; that Gillespie told him C. P. Bowers & Co. was a joint-stock company. One of the circulars which the witness said he read set forth in elaborate terms that C. P. Bowers & Co. owned 630 acres in “Tropical Mexico,” and would sell 10 acres on an easy installment plan, cultivate it, market the product, and remit the profit, less only a fair discount for acting as sales agents. The land was described as rich and as suitable for banana crops, which would mature rapidly, and bring in at least $41.62 the first year and
“In the second year you see, you have 1,000 trees, and the proportionate return will be the same, excepting that it will be less the following charge, which is for the services of C. P. Bowers & Oo. and is itemized as follows:
“For marketing the fruit, 4$ per bunch.
“For cultivating your ground, 10% of cash received.”
The circular announced that C. P. Bowers & Co. were simply the agents of the purchaser and the contract could be terminated at any time upon the purchaser’s desire. The information with respect to titles was as follows:
“Titles.
“The title to the land owned by C. P. Bowers & Co. is a perfect warranty deed, and is free, therefore, from any.possible defect.
“Terms.
“We sell the land at $200 per acre. Ten acres sold for $200. Ton can pay the money down and secure immediate possession of title, or pay for each acre of land you take on the installment plan, i. e., $25 down and $15 monthly till paid. Deed to your land is handed you the moment the last payment has been made. When you receive your deed you have a complete acre or more (if you have bought more) of land under full cultivation, we, as your agents, having brought it to that stage. . Thereafter you receive your annual Income as its products are sold by us.”
A clause in the circular stated that Alex. Smith & Co. of Tampico would tell who C. P. Bowers & Co. were, and that they were thoroughly responsible people, and knew about the title, situation, etc. Appended to the circular were many quotations from newspapers and writers concerning the banana growing industry, and paragraphs concerning the advantages of market facilities, and how the investment would bring an income for life. At the close of the circular were some seven “Hints and Paragraphs,” such as, “Know your money is invested in an enterprise producing something for which a demand already exists“The savings of the average man never bring wealth; profitable investments alone create riches,” etc.
There was further testimony from witnesses who stated that after reading the advertisements to the effect that the opportunity offered a chance to make an income for life, and that a half acre for every $100 invested would yield 26 per cent, the first' year and 58 per cent, the second and succeeding years on the money invested, they bought some of the land from Bowers. One witness, J. C. Baird, testified that Bowers pointed out to him on a map the location of banana plantations and said that they were selling the land and intended to put a pumping plant on it for irrigation; that he corresponded with C. P. Bowers & Co. and together with liis daughter concluded to make an investment; that he received a contract through the mails after remitting $190 in March, 1909. Mr. Baird introduced a letter which he had received from “C. P. Bowers, Pres.” on paper headed, “C. P. Bowers & Co., Plantation Owners; C. P. Bowers, President; C. P. Bowers, Vice-President; H. C. Myers, Secretary — Bos Angeles, Cal.” This letter inclosed contracts made out in the names of J. C. Baird and
“a little more time than we anticipated in issuing the deeds to yourself and daughter. * * * Things move very slow much slower in Mexico than in the United States, in fact, and especially when you are awaiting upon native officials.”
Again, on June 30th, C. P. Bowers, Pres., wrote to Mr. Baird that they were doing everything possible to get the deeds, but that it required 9 months to have a deed delivered and recorded in one instance. The letter advised Mr. Baird that the time of the delivery of the deed did not interfere with the care of his land, and added that:
“The really important part of the entire transaction as we see it, lies in developing the land and producing the crop.”
Again, on August 7, 1909, in a letter signed C. P. Bowers, Mr. Baird was advised that he (Bowers) had not yet received the deeds but hoped to have them ready soon, and that both acres of land for which shoots had been planted before Mr. Baird and his daughter purchased would have to be replanted before returns would come, because of a wash and storms, etc. At a later time, on February 2; 1910, Bowers wrote to Mr. Baird that he hoped before long the deeds would be ready for delivery, and again on February 9, 1910, he wrote to Mr. Baird that there was an oil lease on the whole tract of 630 acres, which a large company held, .and that the rear of the 630 acres adjoined some land in which there were some strikes of large “gushers.” Mr. Baird said that he told Bowers at one time that nearly a year had gone by since he had purchased the property and that the promises for the deed had not been fulfilled; that he had paid cash and wanted his title; that he told Bowers that he had concluded that he could not make a deed to the property because he did not have any title to it; that Bowers remarked that he had some land down there, and when he got the matter fixed up “he thought he could make me a title in the next 60 days.”
“Said I, ‘Then you virtually admit that you did not own that land at the time you sold it to me?’ ‘Well,’ ha says, ‘we paid some money oh the land and hope to get at least 50 acres;’ and I says, ‘Mr. Bowers, I am satisfied that you don’t own that land, and never did own it and can’t give me a title to the property I bought of you. Now, I demand my money back. I demand you to refund to me the money that I paid for this property that you had not title to and couldn’t give me a title to.’ He says, T haven’t got any money.’ ”
Thereafter this witness consulted counsel and made a demand, and received a document about the middle of April, 1914. The document, dated April 14, 1914, is entitled a contract of bargain and sale entered into between C. P. Bowers and J. C. Baird under certain designated conditions. In the first of the conditions Bowers states that he is the sole owner of a certain portion of the property described, which he acquired from Alex. Smith by bargain and sale on July 7, 1910. In the third paragraph the land conveyed from Smith to Bowers is described as 24 hectáreas, 2,915 square meters from tire southern portion
“That the word ‘owned,’ on the fourth page of the indictment together with the clause in which it appears, namely, ‘The said C. P. Bowers & Go. owned six hundred and tliir'y (fiBO) acres of land on the Tamesi river,’ etc., implies that the defendant had such an interest in, and dominion over, the property referred to, that they could convey a good and sufficient title thereto, to an intending purchaser.”
After painstaking examination of the voluminous record, we fail to find any substantial ground upon which to predicate a reversal of the case, and, as the record discloses that defendant had a fair trial, the judgment must be affirmed.
Affirmed.