77 Cal. 347 | Cal. | 1888
The complaint in this action avers, in substance, that the defendant represented to plaintiffs that E. F. Spence, J. F. Crank, and John D. Bicknell were the owners of certain real estate in the county of
“This is to witness, that I have this day sold to Mary Stanley Senter and Adelaide C. Stanley, that certain lot of land described as follows: Lot 18, block F, town of Monrovia, for the sum of $250, and received $62.50, this day paid to me on the purchase price thereof; the balance to be paid as follows: $187.50 on or before seventeenth day of June, 1887, and-dollars on or before -18—. All deferred payments to bear interest at the rate of eight (8) per cent per annum from this date, interest payable annually, and if not so paid to be compounded with the principal; and to be evidenced by their promissory notes under the terms aforesaid, to be executed by said Mary Stanley Senter and Adelaide C. Stanley upon receiving an agreement from E. F. Spence, J. F. Crank, and John D. Bicknell to convey the said property. Deed to be executed when said purchase price, with all interest thereon, is fully paid.
“ Dated seventeenth day of June, 1886.
[Signed] “W. N. Monroe, .Agent.”
That plaintiffs have been ready and willing to execute their notes for the deferred payments upon receiving the agreement mentioned in said written instrument, and to do and perform all and every other thing required of them by said written instrument; that they have not received said agreement from said Spence and others, or either of them, or from the defendant, although they have requested the defendant to deliver the same to them; that they tendered to the defendant the full amount of said purchase-money and interest as pro
The complaint further alleges that “by reason of the said failure and refusal of the defendant to cause the said lot of land to be conveyed to them, they have sustained damages in the sum of three thousand dollars, which said sum is now due and wholly unpaid.” The prayer is for “judgment for the sum of three thousand dollars, for their costs in this behalf, and for all proper relief.” There was a demurrer to the complaint, which was overruled. The answer put in issue all of the material allegations of the complaint. There was a trial by jury, and verdict for plaintiffs for $1,019.53. A motion for a new trial was overruled, and defendant appeals.
The appellant contends that the court erred in overruling the demurrer to the complaint.
It is difficult to determine the ground upon which the plaintiffs seek to recover. The facts alleged tend to show an attemptto recover damages against defendant for falsely representing that the parties named were the owners of the land, and that he was their agent, thus inducing the plaintiffs to part with the sum of $62.50; but the damages alleged are for a failure to cause a conveyance of the real estate, and if the intention is to recover for the false repre
That an action on the contract for damages cannot be . maintained under such circumstances, has been determined by this court. (Wallace v. Bentley, supra.) In that case, it is said: “The theory of the pleader evidently was, that, upon the facts alleged, the liability of the defendants is the same as that of the owner of the property would be if he had authorized the defendants to sell the property, and then, after he had sold it, he bad sold and •conveyed it to some one else. Had that been the case, he, and not the defendants, would have been liable for the damages claimed in this case. But the owner is not liable on the contract, because the defendants had no authority from him to make it. The defendants are not liable, unless the contract contains apt words to charge them personally. (Hall v. Crandall, 29 Cal. 568; 89
In this case there is no allegation that the owner of the property was unknown, or that the property could not have been purchased for the price agreed to be paid defendant for it, or any state of facts set out showing, or tending to show, that the failure of defendant to convey the property did or could have resulted in damage to the plaintiffs.
The demurrer to the complaint should have been sustained.
Other questions are presented by the record, and argued in the briefs, but the conclusion we have reached renders it unnecessary that they should be considered.
The judgment and order. denying a new trial are reversed, and the cause remanded.
Sharpstein, J., McFarland, J., Searls, C. J., Paterson, J., and Thornton, J.,, concurred.