The record-union., 1891-02-12

". v.
These findings are sustained by the
testimony of Burner (see fols. 3034 4,
BIG, 3329-30, 3S4 IS and 326), by the testimony
OF Weller Qols. 3934, 399), and by the
testimony of one Barber (fols. 426-7). And
what is more to the purpose it was proven
that writing was in fact executed by
Weller (who still held the contract of sale)
whereby a one-fourth interest in such
contract was assigned to one Stratton who
was the agent and attorney for plaintiff.
tSee fol. 4l1-lS.) In this regard Stratton
testified that he was the attorney for
plaintiff (fol. 4l9). and that the arrange
ment was that ''in lieu of that deed an
assignment should be taken by me to
hold for Brock as trustee temporarily
until the purchase should be finally con-
summated and Pearson should execute
proper documents to secure Mr.. Brock in
his interest" tFol. 4l5; and see TO same
effect fols. 33S, 34l-2. 4O5 and 4l4-I5.)
As against this overwhelming evidence
the defendants rely upon the testimony
of the plaintiff himself, and insist that he
should be bound by it. 1t is undeniable
be very clear-headed mani testified in
suit by third party against Pearson
that he was to be interested in the profits
of corporation to be formed and not in
the property itself (fols. 474 to 4S3); and
he testified to something like that in the
present suit tfol. $3.50. But he also gave
testimony going to show that the corpora
ton was to be thing of the future, and
was not to operate as a present eXtinguish-
ment of his interest. Thus he says: 'I
did not understand that he was to sell
the property, because l claimed one
fourth in it and should be consulted. but
simply to enable him to carry out
certain scheme of q corporation that was
egentudUy to take this property" (Fol.
nd ntI, f,,+ IL,
while there was some talk about cor
poration nothing definite was concluded
IN relation to it. (Fols. 4G0-I, 421 and
426-7.)
We cannot agree to the proposition that
the plaintiff is bound by such of his testi-
mony as was favorable to the defendants.
AT the very most it only amounted to
conflict in the evidences; and it has been
said that conflict is ''all the more fatal
for being intestine" Crook VS.. FORSYTH,
80 Cal. 662; Bernal VS.. Wade, As Cal. 666.)
But we go further than this We think
it clear upon the evidence that the right
OF the plaintiff to an interest in the land
was not intended to be eXtinguished, and
that the talk about profits related merely
to future action, which was that the prop
erty should be put in the hands of Pear
son, so that he could 'handle'' it for the
benefit of those interested i'll it. Such an
arrangement could be no stronger than a
power of attorney to Pearson. This
could be revoked at any time, and what
ever arrangement was made undoubtedly
revoked by the commencement of the
present suit and the recording of the no.
tice of us pe0deRs.
One of the learned counsel for the an
pellants urges in this regard that the
plaintiff cannot place the title unincun-
bered in Pearson for the purpose of Il
trade, obtain the money of the corpora
+tNn,, l., 4 -.
property was incumbered by some secret
trust in favor of himself' And The others
say: Brock permits Pearson to have
clear title for the very purpose of convey
ing the property to Il corporation clear of
all membranes, and then when Pearson
has so conveyed to such corporation Brock
jumps up to ask that the corporation deed
back part of the property to him" with
more in the same strain.
The counsel overlook the fact that the
present suit was commenced, and the no.
hce of Us pendenS recorded on July 20,
1887 (fols. II and 457); and that the con-
veyance to the first corporation was not
until October 20, 1887 (fol. 46D, and to the
second not until April %. 1883 (fol. 463l.
Furthermore there is not q syllable of
evidence in the record TO the effect that
Pearson ever paid or offered to pay any
portion of the profits to the plaintiff. On
the contrary he denied that plaintiff had
any right TO the land (fols. 325, ,43S. Al,
1889; and after the suit was commenced
said that he should neverget cent. (Fols.
42S, 439 and 403.)
3. What was the authority of Burner in
the premises?
The court finds that Burner ''at all
times was the duly authorized agent of
thedefendant Pearson with general power
to purchase said property" (Fol. 1Sl.)
There is evidence in support of this
finding. Burner testifies that he ''re-
ceived verbal instructions from the de-
iendant John W. Pearson to purchase the
property Gol. 2i9l; that such instruc-
tons were simply verbal, to get hold Of
the property as best l could-that is, to
make the best terms l could to get hold
OF the property" (fol. 29S), and that he was
not simply TO ascertain what the property.
could be bought for, but to get hold'' Of
it. (ifol. 299)
We do not see any evidence contradict
ing these statements. The argument for
the appellants is founded on what oc-
CURED subsequently. In this regard
Burner testities that after the arrange
ment was made by which the plaintiff
transferred his contract to Weller. and
the latter gave back deed to plaintiff, he
(Burnerl went to San Francisco and told
Pearson what had been done, whereupon
the latter said that ''the transaction was
satisfactory, except that he did not want
that deed out. He said he wanted that
deed destroyed. He said he would as
sign the various interests himself" Fol.
259-6l.) Pearson's account is somewhat
different from this. (See fols. 4S7-9.) But
he wrote letter to Burner, in which he
said: There must be no lien or obliga-
ton on the 700 acres except the SIS, 600.
IacfU gre the contract to the Ualfous
Interests to you and your friend, and fo,
ne man from aohona yo~ get the bond: so
sign nothing to any one," etc (fols. 2Si-5).
This letter was shown to the plaintiff, and
Burner testifies that '.the transaction