167 P. 862 | Cal. | 1917
Plaintiff sued, alleging that defendant, Rampart Boulevard Company, had sold to him a lot in a tract upon the representation, evidenced by a map, that a street (Second Street) between Coronado Street and Rampart Boulevard, in the city of Los Angeles, had been dedicated as a public highway and would in time be opened to the use of the public as a highway. After trial the court found against plaintiff's contentions and he appeals from the judgment and from the order denying his motion for a new trial.
Plaintiff upon the trial testified that after visiting the tract of land he found thereon one Nolan, who represented himself as the agent of the selling agents of the tract, and that Nolan gave him a map showing the division of the tract into lots and the streets which were to traverse the tract. On this map was delimited Second Street. He made his payment on the purchase price of the lot and entered into a contract for the purchase which afterward he fulfilled. Years passed and the defendant manifested no intention to open the street, wherefore *141 he brought this action to have his rights in it defined. The defendant Boulevard Company by its evidence showed that it owned this tract; that the real estate firm of Strong Dickinson was engaged by it to secure purchasers after it had prepared its official map (official in the sense that it was adopted by the corporation defendant, the owner of the land, and filed for record), which official map was to show the lots and their prices and the public streets. Strong Dickinson were also interested as owners or part owners in an adjoining tract known as "Rampart Heights Division B." Without authority from defendant, Rampart Boulevard Company, or its officers, and even without their knowledge, Strong Dickinson prepared an advertising map combining the tract in which they were interested with an unauthorized plat of the lands of the defendant corporation. This unauthorized map purported to show Second Street to be a public street as contended for by plaintiff. It was a copy of this unauthorized map which was delivered by Nolan to plaintiff. Nolan, however, had no authority to bind either Strong Dickinson or the defendant, Rampart Boulevard Company. Strong Dickinson never gave to Nolan any copies of this unauthorized map. He secured them without their knowledge from their office, and when they knew that he had possession of some of them they went to his place of business, gathered up all that could be found and destroyed them. Moreover, the writing which Wicks received from Nolan when he made his deposit on account of the purchase price declared expressly that it was not a contract of sale. The evidence shows that to enter into such a contract it became necessary for the plaintiff to call upon Strong Dickinson, and he did so. In the negotiations with Mr. Dickinson which resulted in the executory contract of sale into which Mr. Wicks finally entered, the official map of the tract was before the parties. This official map showed that there was no such street as Second Street, and the contract which was entered into made express reference to this official map. Thereafter, the plaintiff with the consent of the defendant owner of the land abandoned this executory contract and negotiated with the defendant for a new purchase, a purchase embracing less land than that called for by his original contract. Under this arrangement the earlier contracts were surrendered and he took a deed to one lot as *142 delineated upon the official map, the plaintiff upon this matter himself testifying that the original contracts were all surrendered at the time he accepted his deed and that before he got his deed he knew that the recorded map referred to in his contract and in his deed did not show that the disputed strip was a street and did show it as being two lots; that at the time he took his deed he made no objection to having the property deeded by reference to the map; "I was not counting on a street; all I counted on myself was a cross-walk."
Though the evidence discloses more than this, here is enough to support the finding which the court made against plaintiff's contention. This finding is of determinative consequence and renders unnecessary the consideration of any other proposition the appellant advances.
The judgment and order appealed from are therefore affirmed.
Melvin, J., and Shaw, J., concurred.