Daily Los Angeles herald., 1884-01-20
An ImpoarAnr DscssIon.
Pho Pioo VS.. B. Cohn ct al-Pico
wins-Abie Opinion Of Hon. v. e.
Howard.

Pho Pioo VS.. B. Cohn ct al-Pico
wins-Able Opinion OF Hon. v. e.
Howard.
Yesterday Judge Howard filed his
findings in favor of the plaintiff in the
ease OF Pico VS.. Cohn ct al. As
the case involved property valued at
upwards Of $3.50, 900, 1t has excited gen
eral interest. The following is the learn
ed opinion of Judge Howard:
In the Superior Court Of Los Angeles
county State Of California.
Pho Pico, Plaintiff,
vs..
B. Cohn, ct al, Defendants.
OPINION.
The complaint in this case alleges that
on the 7th day of April. 1883, the plain.
tiff was the owner oil ese three pieces
of property, q ranc4o knewn as the
kanchito, the Pico Ii. use, and the Bank
Building. That on that day lie con-
veyed by deed, absolute in form on lis
face, to b. Cohn all Of said property; that
it was understood and agreed that upon
the payment Of sos, 900 by Pico on or be.
fore the first day Of July, 1888, to Cohn,
he (Cohnj would re-convey smd property
to Pico.
The complaint also alleges that Cohn
never intended to perform hi, promise,
but that he made use Of it, as means of
inducing Pico to sign the deed, and by
this and other fraudulent contrivances,
the execution Of said deed was procured.
These allegations present two issues:
l. What was the understanding be-
tween the parties to the conveyance
2. Was the deed procured by fraud
There are subordinate issues, which
may be referred to and disposed Of.
The complaint alleges that the aggre-
gate Of liens upon the property was $6l,
6S4.S6.
The amount estimated by Cohn was
S62,S37 and so certified to. This is
alleged to be the amount of liens on the
Ranchito. 1t is estimated by Cohn that
the liens amounted to $3.50, 900 and more
besides adverse claims Of title. The
complaint charges this to be reckless
statement, and that DIMINISHED that the
negotiations between plaintiff and him
self shouldbe keptstrictly secret, and that
the plaintiff should not consult his
lawyers with reference to the matter, OF
inform them that tlfe matters of negoiia-
tion were in progress between himself and
plaintiff.
Defendant admits that he did enjoin
secrecy ON Pico, but alleges that said re-
quest was made to prevent officious in
termeddling by cormorants, self-consti
tuted agents and irresponsible parties and
not otherwise"
The fact being admitted, the purpose
is for the construction OF the Court, as
well as it's effect. The instruction not
to inform counsel that the negotiation
with defendant was in progress was
equivalent to concealment from plain
tiffs counsel, so far as defendant was
concerned.
As to fraud, it is beyond controversy
that +. P. johnson, commonly called
Pancho, was the confidential friend and
agent Of Pico in his negotiations for
money and loans, and especially 10 his
negotiations with defendant Cohn. that
Cohn paid him $3.50 commissions for his
negotiations in this business with Pico,
and rendered an account and voucher for
the same.
johnson, in his shutting reply to
questions, says that the $3.50 was pres
ent from Conn, but this is contrary to
proof and voucher Of Cohn.
There can be no doubt that such en-
ployment was fraudulent and illegal,
whether the contract was loan or an
absolute sale or a conditional sale as
contended for by counsel for defendant.
Dunlap's Paley, p. 33, note 3.
Story on Agency. Sec. 2ll.
ut is rule of law well settled, found
ed on the clearest principles of justice
and policy, that the agent of seller
cannot become the purchaser. or the
agent OF the purchaser.
Copeland vs. Mercantile ms Co., 6,
Pick, 2O4.
As the pleadings admit that the prop
erty was worth $225. 900, and defendant
admits that he has only paid for the prop
erty liens and all Sic. 900, and that the
property is worth 25 per cent more now,
the confederation was clearly inadequate;
he also claims to have paid for improve
ments on the property about $40,
1t was proved beyond controversy that
Pico had more advantageous offers. 1t
is urged that the money was not actually
offered, and the tender kept good by
bringing the money into court, but this
was rendered unnecessary by COINS
claiming the property by absolute con-
veyance. and in fact refusing to receive
the money on redemption. It must also
be remembered that Pico was SO years
Of age, in great financial embarrass
that defendant dealt with him as pur-
chasing to relieve his estate from q
wreck. by the motive Of saving to him
SIC, 900 from the wreck. The made
quacy Of price in this case accompanied
BY the fraud proved is such as to indicate
fraud.
Story's Equity, Sec. 2a6.
Kerr on Fraud, p. l89.
It would be difficult to find any. au-
thority for the position, that the wreck
ers are entitled to take the whole ship
and tackle as salvage, after the vessel
reaches port, although they may be en-
titled to reasonable salvage.
Both parties in the negotiations treated
the Pico estate and property as
wreck.
1t Is clear that Pico was under undue
influences brought about by defendant
and Pancho johnson, the party he en-
ployed, and paid by defendant.
Kerr on Fraud, p. $50.
1t is apparent that the minds of Pico
and Cohn never met on the proposition
Of an absolute sale. The proof shows
beyond any reasonable doubt, that Pico
believed he was to have the right to re-
deem.
If one person consents to . thing
and another to o thing in any degree diff
ferent 90 that their wills do not COM
pletely coincide, this does not create q
contract between them; each must con-
sent exactly to the same thing to which
the other does and at the same time"
Bishop on Contracts, Secs. l74, 1874.
1t is in proof that different parties
offered to loan Pico money, did so on
the condition, that, he should give an
absolute conveyance with . defeasance,
that the property should be reconveyed
on the payment Of the amount as loaned
and interest, Pico might therefore. have
well believed that this was his arrange
ment with Cohn. Cohn testifies: "Three
or four days before the trade was merged
in the writing. made . remark to him
(Pico) about the Porter plan Of . loan, of
the loan which was if he wanted $50, 900