The record-union., 1891-01-22
PErTrSeER, Respondent

PETTINGER, Respondent
VS.. mo. 1877
FAST, Appellant.
Action TO recover the sum of 81 $50, al
legged to be due plaintiff, for the balance of the
purchase price of land conveyed by plaintiff
TO defendant. The court below gave plaintiff
Judgment for that sum, and also denied
defendants motion for a new trial. and the
defendant appeals from such Judgment and
order.
The facts as found show, that on November
II, 1856, plaintiff executed to appellant
deed of his farm. the appellant agreeing in
writing TO pay therefor the sum OF $4,000,
and 10 give one-half Of all, in excess of that
sum, which 1.-The farm can be sold for within
two years. such additional sum ito be also
part of the purchase price, when sold for a
larger sum- 1t is also found that on Sep
tember /, 1857, appellant entered into an
agreement in writing with one Ed culbert,
whereby he sold to said Culbert the said par
GELS OF land for the sum of $4,000"
The principal question TO be determined on
this appeal is whether the finding of the court
in relation to the sale of the land is justified by
the evidence. IT was shown upon the trial that
on September |, 1887, the appellant and one
Cutbert entered into an agreement i'll writing
by Which the appellant promises and agrees
! to sell and convey unto the party of the second
part (CulberD and to make and execute and
deliver TO him u deed' of the land purchased
| by appellant from the plaintiff in this action,
| the said CGlbert ITO have and to hold all and
singular said premises, together with all the
teneinentS, Entertainments and appurtenances
thcreunto belonging except that por-
ton of the timber thereon, hereinafter men-
toned and reserved unto the party of the first
| part" The agreement further recited that the
appellant was to have all the timber on said
land, ''except that on the southern line on the
| mesa, adjoining the Rincon Rancho, and on
! the east end of said meSa.n
| 1t is clear that under appellants agreement
| with respondent an actual sale of the farm
! within the time limited was not indispensaby
necessary in order to establish fact the
| price for which it could have been Sold and
| thus fix the liability of appellant Hereunder.
The appellant would not have been at liberty
to reject any bona tide offer OF purchase for 81
| sum exceeding $4,000 without the consent of
| the respondent But the complaint alleges an
actual sale to Culbert for the sum of $4,000,
and the Court SO finds, and it is therefore
necessary to consider whether such fact was
! established upon the trial.
| The appellant insists that there was no sale
| to Culbert at ALL but only an agreement to SELL
| But we are of opinion that such contention
cannot be sustained. In the case of Eaton VS..
| Richeri, (S3 Cal. 1851 the plaintiff therein
| was to wait for any balance that might be due
him until certain mining property was sold
and an eXecutory contract for the sale of the
mine was made and the court held that the
| plaintiff could recover, saving: THE word
| '.soldidoes not necessarily and in all connec-
| tions mean that n conveyance must be made,
| or that the title must pass
The fact that no money was received by APP
pellant on the contract is immaterial. The
| transaction was none the less q sale, and by it
| the equitable title of the property sold passed
/ TO Cuibert. But in one respect the evidence
/
] this sale. The written agreement of sale con-
tanned q reservation OF standing timber, and,
we think, Notwithstanding some confusion in
| the evidence, that the real transaction between
appellant and Culbert was Il sale of the farm
| for the sum of $4,000, and the appellant re-
| serving the growing timber thereon as speci-
! fed in the contract OF sale. The fact that this
| timber may have been estimated by both ap-
! 1eliant and Culbert as of the value of $4,000
/ or that appellants price for the land with tim
| ber standing was IS, 600, and with q reserVa-
| ton of such timber Sc, 900, cannot change the
| terms of the actual sale. as made to appear by
| the written contract of sale. By that contract,
/ as we have said, the farm was sold for the sum
| OF $4,000, the appellant reserving as an in
| tereSt therein the standing timber referred to-
and proof OF such a contract is at variance
| with the contractalleged in the complaint and
| found by the court, and the finding that the
! farm was sold for the sum of $4,000 is not
sustained by the evidence.
Undoubtedly the respondents right to re-
| cover on his contract is not limited to the sum
agreed to be paid by Culbert, but if he seeks to
| recover more it must be upon a complaint
which shows the facts as they really exist 1t
| is clear that upon the execution of the con-
| tract of sale appellant disabled himself from
thereafter accepting any bona ftde offer for the
farm, and the respondent became entitled to
recover, not only upon the basis of the price
agreed to be paid Dy CulberI, but in addition
| thereto one-half of the market value of the
standing timber reserved, or. at his option
one-half of the net sum for which such timber
may have been sold by appellant
Judgment and order reversed.
De HAVEN, j.
We concur:
PATERSON, J.
GAROUTTE, j.