74 P. 139 | Cal. | 1903
Lead Opinion
This is an appeal by plaintiff from a judgment in favor of defendant, and from an order denying her motion for a new trial.
This case has been here three times, and the decisions on those appeals are reported respectively in Horton v. Jack, 37 P. 652;Horton v. Jack,
The facts are fully stated in the former decisions, and it is unnecessary to repeat them here. At the last trial the facts and evidence were the same as on the former trial, with one exception, which is immaterial. Before the last trial the defendant filed an amended answer, in which he averred that the sale of certain personal property of the estate of James A. Brown by Mrs. Catherine J. Brown, in her individual capacity, to the defendant Jack — and which constitutes the subject of the litigation — was made under a mutual mistake of law because Mrs. Brown and Jack each erroneously believed that the former had the legal right to sell the property to the latter. There were some evidence as to this mutual mistake; but in other respects the evidence and facts were the same as on the other appeals. But if it be conceded that *586 there was this mutual mistake by Mrs. Brown and Jack, it would afford no defense to this action. Assuming the rule to be, that a contract made through a mutual mistake of law may give a right to one of the parties thereto to rescind, or to have some other legal remedy against the other party, still such rule could not apply to the case at bar. The plaintiff here representing the estate was not a party to the sale or to the mistake; and the estate is in no way affected by either. The case, therefore, on this appeal is the same as it was on the other appeals; and on the authority of the former cases above referred to the judgment and order denying a new trial must be reversed. It may be, as respondent's counsel asserts, that this action is prosecuted merely for the profit of those who want money out of which to get administration and attorney's fees; but this consideration cannot be allowed to override the law of the case as already established.
There is also an appeal from an order of the court below refusing to enter a certain judgment; but we are not prepared to say that the court erred in that matter, and that order is affirmed.
The judgment and order denying a new trial are reversed.
The following opinion was rendered by the court upon denying a petition for rehearing, November 9, 1903: —
Addendum
A rehearing of this cause is denied, but the court deems it proper to say in response to the petition for rehearing that the judgment in this case cannot affect any claim that the defendant may have to such share of James A. Brown's estate as may be distributable to the estate or successor of Catherine J. Brown. *587