The record-union., 1891-03-19
SUPREME COURT DECISIONS.

Titled at Sacramento, March 8, 1871
In BANK
WIN. G. BURKE, Admir-, ETC.,
Appellant,
y. w. BoURs, EFT AL,
Respondents.
This action in ejectment was instituted
70 recover certain real property in the
City of Stockton. The cause has been
here before (67 Cal, 447), and it was then
decided, among other things, that GER
tain deed made by one Arguello twhose
wife's administrator is now the plaintiff
here) to Bours the defendant, was void
and of no effect to convey title from Ar
guello, because at the time it was exc
cuted and acknowledged the name of
Bours, the intending purchaser, was not
inserted in the deed, and that instrument
was blank as to any grantee.
The defendant in possession set up in
defense to the apparent legal title of the
; plaintiff facts which are claimed to con-
stitute a perfect equitable title in the
former.
The court below by its findings and de-
cision conceded with the defendant, and
rendered judgment that the plaintiff take
nothing by his action and that the defend
ant recover costs. From that judgment
this appeal is taken upon the judgment
roll, and bill of exceptions showing
such of the evidence as is necessary, upon
which is based the findings and decision
which are attacked.
1t seems to be conceded by all the con-
testants that the property in dispute was
owned and held by Jose r. Arguello at
the time he signed the deed. The re-
spondents claim, however, that on the
l4th day of September, 1876, Arguello
agreed to and did afterwards sell and
convey the property to defendant, Bours,
-.l II. g..
appellant takes the position that no sale
or conveyance ever took place; that the
deed made i1 bunk. as to the grantee
therein, by Arguello, was void, and that
there was no agreement or contract on
the part of Arguello to sell to the defend
<ant Bours ana that he never did sell to
him.
The basis on which the appellant argues
:, his theory of the case is that Bours was
the agent of Arguello to find a purchaser
for the property in disputes; that he in
formed Arguello that he had found pur-
chaser at the price Arguello was willing
to take for the property, but that he did
not inform Arguello that he, the agent
was the purchaser, and therefore both
the deed and the attempted purchase of
Bours was void. That the court below
was in error in finding, against the evi-
Gence, that BourS was not the agent of
Arguello, as also in other findings re-
SptNbiiiS lilC AdSlo VI flScltCy
and notice to the principal" The facts
as disclosed by the letters in evidence ap-
pear to be about these:
Arguello was the owner of this prop
erty on the 18th of August, 1876. Bours
never knew him at all, but Falkner, Bell
d Co., of San Francisco, seem to have
been the agents for Arguello in the col
lection of rents and general management
OF the property here involved. Upon
that day they wrote to Bours, who lived
at Stockton, in which place the property,
as we have seen, was situated, that Ar
guello thought of selling his real estate in
that town, and had requested them to
ascertain the price it would probably
realize. AT that time, according to the
evidence of Bours, which is not contra
dicted, he was looking after the property
at the instance and request and as the
agent of Falkner, Bell u Co., land for
nobody else" as he had been doing be-
fore Arguello purchased it for one Mazes,
the seller to Arguello. After Bours took
charge of the property for Mazes he was
instructed by him to make his returns to
Fallkner, Bell Il Co. After Mazes sold to
Arguello, Falkner, Bell 81 Co. sent the
deed, showing that sale, to Bours that it
might be recorded and returned to them.
After that he looked after the property
for Falkner, Bell IL Co, who instructed
him to take charge of it, pay the taxes
and make returns TO them. But he never
received any instructions from Arguello
respecting the property, or had any COM
munication by word or letter with him.
In this state of affairs Bours replied by
letter to this inquiry of Falkner, Bell x
Co. that he did not think the property
would sell for over 5000, that the tenant
of it was dissatisfied with the present
rents, which he however declined reduc-
ing. Falkner, Bell & Co. sent this letter
of Bours to Arguello at Santa Clara.
Several days after that, the latter wrote
to +. B. & Co. that he agreed with Bours
in his opinion of the property, and re-
,queSted them Ito communicate with Mr..
Bours, and try to sell the property at a
price as near as possible to s., 5,000.' This
letter was sent to BourS by +. b. & Co.,
stating that it authorized the sale of Ar
guello's property 'at or about your fig
ures, namely 5000" Bours replied TO
+. b. q Co.'s letter, stating that he had
ordered an abstract of title to the property
TO be prepared, and had placed the same
in the hands of competent broker" and
hoped soon to report q sale of it.
Bours testified in this connection that
Mr.. Cutting, the broker in whose hands
he had placed the property, had been in
the real estate business for about twenty
five years, etc. Cutting testified that he
tried for several weeks to sell the prop
: letter of Bours, just mentioned. was COM
municated by letter to Arguello by +. b.
Is Co.
At or about this time Bours wrote to f.
B. Il Co. that the only offer he had re-
ceived for the property, free of brokers
commissions or costs Of deed, was $1,000,
(which offer ! have accepted, subject to
the approval of the owner" He inclosed
in that letter deed for signature with
name of purchaser and amount blank.
. The letter of Bours was sent to Arguello
by +. b. Il Co., with the deed for Argu-
oil 10 c,r sl,n = H.
terms mentioned. Z. B. a. Co. declined
to advise as to the matter, because they
J know nothing of the value of the real
! estate, but stated that they considered
, Bours competent and reliable man.
Closing, they wrote, 1T remains for you
to. decide as to the price,
. L. B. e Co., after receiving the deed
signed and acknowledged by Arguello,
I. with the blank filled in by him as to the
/. amount of the purchase price, 81 500, but
the name of the grantee omitted, sent the
4 instrument to Bours with letter re-
, queSting PLEASE advise US when the
= matter is settled.u
4 After that Bours sent to F. B. & Co. a
Z check for the amount of balance due foI
= rents, etc, and also a check for the 81, 500,
proceeds of the sale of the property
but did not state who was the purchaser
of the property" F. b. Il Co. acknowl-
edged the receipt of the checks and stated
that they had placed them to the account
of Arguelro. They informed Arguello Of
these facts by letter also. Arguello ac-
knowledged receipt of this letter and APP
peared to approve of their acts in receiv-
ing the money and putting it to his
credit. About two months after this il
seems that Arguello died, and about two
years and eleven months after that this
action was brought.
The administration of the estate Of Ar
guello was closed and the estate distrib-
uted, but the money paid by Bours to. F.