Northam v. Gordon, 46 Cal. 582

Northam v. Gordon

46 Cal. 582 | Cal. | 1873

By the Court, Crockett, J.:

This is an action to recover from the executors of the estate of George Gordon, deceased, a sum of money alleged to be due from the estate to Northam and Whitmore, for services rendered by them in successfully resisting the claim of one Limantour to certain lands of Gordon, which were included within the claim. It appears that certain persons, including Gordon, whose lands were affected by the Limantour claim, agreed upon a plan of organization for the purpose of resisting the confirmation of the claim. The plan was reduced to writing, and subscribed by a number of the property owners, of whom Gordon was one. It was agreed to appoint a General Committee, and also an Executive Committee of two, and that the latter Committee should devote its entire attention to the business—should employ counsel, collect evidence, and attend to the defense through all the Courts. It was further agreed that the Executive Committee should “act as contractors with the respective parties *586in interest to defend to the full extent, if necessary, of the amounts collected and received from them respectively such lands as may be listed with said Executive Committee” against the claim of Limantour, upon condition that “the description of their property shall be presented to the Executive Committee, and a payment shall then be made of one per cent on the assessed value thereof, as per County Assessor’s roll for 1855-56 to the Treasurer, through the Executive Committee, to be entirely applied, on the orders of the Executive Committee, to the cash expenses and disbursements contingent to the business of subscriptions and defense. * * The owners or their duly authorized agents of record, shall then execute a stipulation to pay to the Executive Committee, on said valuation of their said property, one and one half per cent” on the rejection of the claim by the Land Commission; one per cent on the rejection of the claim by the District or Circuit Court, and one and a half per cent on its rejection by the Supreme Court. It was further provided that “should Limantour avoid the issue by releasing the said property, then the whole of the percentages not previously paid shall become due and payable, as if the said claim had been defeated in each instance. * * * It is to be distinctly understood that the claim is litigated solely for the protection of the properties registered in their book, and subscribed upon. The Executive Committee will not exert itself for the benefit of those who do not assist in defraying the cost.” Northam and Whitmore were appointed the Executive Committee, and thereupon Gordon and four other persons subscribed a memorandum at the foot of the instrument in these words: “The undersigned, parties in interest, will subscribe to the foregoing plan, and will so contribute on the property represented by them within said claim.” Opposite Gordon’s signature the property represented by him is stated to be of “about the assessed value,” of forty thousand dollars. The complaint, *587after stating the substance of these instruments, avers that Northam and Whitmore entered upon the performance of their duties as the Executive Committee, and expended large sums in resisting the Limantour claim, which was ultimately rejected by a final decree of the District Court of the United States. But before the claim was finally rejected they procured Limantour to release his claim to Gordon’s land, by a deed duly executed, which they tendered to Gordon, and requested payment of the amount agreed to be paid. They further aver that the assessed value of Gordon’s property, within the Limantour claim, was eighty thousand nine hundred and fifty dollars; and that, though often requested to do so, he neglected to present a description of his said property, and to execute the stipulation, or to pay either of the percentages provided for in the contract. At the trial, the plaintiff’s counsel, in his opening statement, offered to prove all the averments of the complaint not admitted by the answer, and also that Gordon, in his lifetime, recognized the instrument here sued on, “as an agreement in presenti,” and when asked by Northam and Whitmore to give the description and stipulation therein called for, put them off, saying he did not clearly know the exact assessed value of the property, but would obtain it and furnish a description; that he thought it amounted to about eighty thousand dollars. Some other facts were offered to be proved, which we deem it unnecessary to notice. The defendants moved for a non-suit on the plaintiff’s opening statement, on the ground that if all the facts proposed to be proved were true, they would not constitute a cause of action. The motion having been granted and a final judgment entered for the defendants, the plaintiffs appeal from the judgment and from the order denying their motion for a new trial.

We think the nonsuit was properly granted. One of the conditions of the plan of organization was that the Limantour claim was to be “litigated solely for the protection of the *588properties registered in their books and subscribed upon. The Executive Committee will not exert itself for the benefit of those who do not assist in defraying the cost.” The offer of the Executive Committee was to render their services in behalf only of property registered in their books and subscribed upon. Until the property was registered and the subscription made in the manner provided by the plan of organization, the offer was not accepted. Until this was done the committee was under no obligation and did not undertake to render any service for the protection of the property; consequently there was no contract between the parties, for the breach of which an action would lie. The class of cases cited by the plaintiff’s counsel, in which an offer by the one party and an actual performance by the other, has been held to be a sufficient acceptance to uphold the contract, establish a proposition, which is not applicable to the case at bar. Here the offer was by the Executive Committee to perform certain services on certain conditions, and they claim that Gordon accepted the offer, and that a contract was thereby created, for a breach of which this action is brought. But one of the terms of the offer was that they would perform no service in behalf of property not registered and subscribed upon. Gordon failed to register his property, or to make the subscription in accordance with the offer. The offer, therefore, was not accepted, and no contract was created. We think the principle governing the case is discussed and correctly defined in the case of Governor, etc., v. Petch, 28 Eng. Law and Eq. R. 470. In that case a charitable corporation advertised for bids to furnish certain meats; and it was stated in the advertisement, that after a bid was accepted, the successful bidder “will have to sign a written contract,” etc.

The plaintiff’s bid was accepted, and he proceeded to furnish the meats; but failed to enter into the written contract. The action was upon the contract, to recover the price of *589the meat at the stipulated rate; and the Court decided that having neglected to enter into the written contract, the plaintiff had failed to accept the offer according to its terms, and consequently there was no contract, such as was declared upon. The same rule is applicable to this case. Gordon did not accept the offer of the committee according to its terms, and there was, therefore, no contract in the form declared upon. The most that can be claimed is that Gordon agreed he would at some future time accept the offer of the committee, but he never did accept it.

Judgment and order affirmed.