89 Cal. 231 | Cal. | 1891
— The real question involved in this action is, whether the one thousand dollars which the plaintiff alleges was paid by him to the defendant, and for the recovery of which the action was brought, was paid as a compromise and in settlement of differences existing between him and the defendant, or whether it was paid upon the representation and claim by the defendant that he had an interest in the purchase of certain lands in Oregon, and upon his agreement that he
In pursuance of a previous plan formed on behalf of the plaintiff, one Walker, and one Smith, with the defendant and his brother, the defendant and Walker had gone to the state of Oregon from the county of Humboldt, where they all resided, for the purpose of making purchase of lands, if any could be found which would be satisfactory to them. Previous to their departure, a note for five thousand dollars had been given to the Humboldt County Bank by four of the parties, for which the bank had given five one-thousand-dollar drafts on the Bank of California, of which two were made payable to the order of Walker, and three to the order of the defendant. After reaching Oregon, a purchase was made of the Long ranch, and an agreement for its conveyance executed between the owner and Walker, the defendant signing his name as a witness to the agreement. After making this purchase the defendant and Walker looked at some other tracts of land, but finding none which suited them, returned to Humboldt County. On their route back a disagreement arose between Walker and
It would serve no useful purpose to recount the testimony given at the trial. Both parties to the action, as well as the other parties to the transaction, were fully examined, and testimony from disinterested witnesses in corroboration of one or the other was also presented. All the relations existing between the five parties to the transaction,—the conversations and preparation prior to the departure of the defendant and Walker for Oregon, the procuring of the money with which to make such purchases as they might desire, their negotiations with reference to other tracts of land, — in fact, everything that might serve to throw light upon the particular transaction, was placed before the jury. It is needless to say that in many respects the testimony was in direct conflict. The jury, however,'had the opportunity to weigh all the evidence, and to determine the effect to be given to the testimony of each witness. They were enabled to determine the extent to which the plaintiff
The fact that Walker had been with the defendant at the time the purchase was made, and that the plaintiff had learned from him the facts connected with his purchase,did not of itself make the payment to the defendant voluntary. Walker and the defendant differed radically in their version of the transaction, and in their view of the rights of the defendant in the purchase. The plaintiff was not compelled to believe that the version of either of them was correct. He had the right to further inform himself of the facts connected with the purchase, and to rely upon the statement of the defendant that these facts would show that the defendant did have an interest. If upon such investigation he was able to establish that the, defendant did not have an interest, he had a right to demand the money back in accordance with the terms upon which he had paid it. Walker himself refused to be a party to any compromise; and the contention of the defendant that because Walker knew all the transaction he could not have been misled by any statement of the defendant has no application to the position of the plaintiff. He did not have Walk
When the plaintiff rested, the defendant asked for a nonsuit, which was denied. There was no error in this. The court would not have been justified in withdrawing from the jury the determination from the evidence then before it of the proposition upon which the defendant asked the nonsuit.
We find no error in any of the instructions or rulings of the court, and upon well-settled principles in reference to conflicting evidence, the judgment is affirmed.
Paterson, J., and Garoutte, J., concurred.
Hearing in Bank denied.