114 Cal. 302 | Cal. | 1896
This action was brought by the plaintiff to recover. from the defendant the sum of $800, the balance of the purchase price of certain mines, said sum being the amoúnt of a promissory note executed to the plaintiff by one J. Murray Bailey, in his own name, it being alleged by plaintiff that in making said purchase and executing said note, Bailey in fact acted as agent for the defendant, though plaintiff then and for a long time thereafter supposed and believed that he was acting in his own behalf. The jury returned a verdict for the plaintiff, upon which judgment was entered, and this appeal is from the judgment, and from an order denying defendant’s motion for a new trial.
The only point made by appellant for reversal is that the verdict is not sustained by the evidence.
Plaintiff was the owner of certain mines, and had given a bond to Holcombe & Beale to sell and convey said mines to them at a price therein named for the purpose of enabling them to sell the property. Bailey was a broker engaged in buying and selling mines, and Holcombe & Beale called his attention to the property, and exhibited to him specimens of the ore, which he had tested and found valuable. Lambeth, the defendant, was a mining man of considerable means, and Bailey, who was without means and unable to purchase on his own account, called the attention of Lambeth to the property and showed him the samples of the ore. Bailey testified that he proposed to Lambeth that when the property was secured he would form a corporation and would give Lambeth the control, “ if he would put up the money and purchase the mine, provided he approved of it when he examined it”; that Lambeth said he would let him know, and the next day informed him that he was “ ready to go in that mine.” The understanding in relation to the interest each was to have in the stock of the corporation was that Lambeth should have 110,000 shares out of the 200,000 which was to represent the capital of the corporation, and Bailey was to have 90,000, out of which he was to provide
The price named in-the bond held by Holcombe & Beale was $22,500, and Bailey agreed to give them 40,-000 shares out of his 90,000, they to permit the purchase to be made direct from the owner.
Lambeth desired Bailey to put the proposition that he would give but $5000 for the title in writing, when Bailey suggested that that was “ a big come-down from $22,500, and that he might not be able to get it for that.” Mr. Krohn, the owner, had not been seen at that time. Lambeth then said: “I will go as high as two thousand or three thousand dollars more than five thousand dollars cash, if you have to do it to get the property, but if you have to pay more than $5000 cash and go as high as two thousand or three thousand dollars more, you take it on a long-time note of two or three years.” Bailey then wrote and Lambeth signed the following:
“Waterloo Mine, June 13, 1891.
“ To J. Murray Bailey,
“Dear Sir: I will advance $12,000; $5,000 to pay for the property and $7,000 to be expended in repairing the mill and opening of mine. All money advanced by me to draw ten per cent per annum until paid out of the profits of the mine, either by working or sale of mine. The property to be incorporated; capital stock, 200,000 shares; I to receive 110,000 shares. In regard to negotiating with Mr. Krohn, you can go as high as $3,000 over the $5,000 cash, if you have to do it as a last resort, but should get two or three years’ time.
“ (Signed) M. Lambeth.”
Bailey felt doubtful about getting the property for $5,000, and suggested to Lambeth that he had better go and try it, but Lambeth replied that as he was known to be a man of wealth the parties would jump it up on him, or something to that effect, and at once returned to the city. Krohn lived some five miles from the mines- and had not been seen. Bailey then gave Holcombe a. written agreement to give him, for himself and Beale, 40,000 shares of the stock, when issued, for their interest under the bond, and the}7 gave written authority to Krohn to deal with Bailey regardless of the bond.
Bailey then visited the plaintiff, who asked $10,000, but finally agreed to take $6,000, $5,200 in cash and a note for $800, payable in fifeeen months and fifteen days without interest.
Bailey executed the note, and plaintiff executed a deed for the property to Bailey as grantee, and these instruments were placed in escrow. Bailey did not disclose Lambeth’s connection with these transactions, nor did plaintiff know that anyone save Bailey himself was interested as purchaser.
Upon Bailey’s return to the city, Lambeth was fully informed of the transaction and made no objection thereto. He deposited $12,000 to the credit of Bailey, out of which Bailey paid $5,200 to the bank, which held the deed and Bailey’s note in escrow, and the bank de„ livered the cash and the note to the plaintiff, and the deed to Bailey. Bailey went to the mine and took personal charge thereof; the corporation was formed and the stock issued and distributed according to the arrangement hereinbefore stated. Bailey testified that he executed said note in his own name because he had no-authority to sign Lambeth’s name, and because of Lambeth’s suggestion that, if he were known in the transaction, the price might be raised.
The verdict was returned and the judgment entered upon the theory that the evidence showed that Lambeth
The judgment and order are reversed, and the cause remanded.