Los Angeles herald., 1892-01-19
TWO DECISIONS.
Judge Van Dyke Decides Two
Cases.
SOME Interesting Law Points
Brought Out.
Barclay VS.. Severance of Interest to
Real Estate Agents.
No Commission to Be Collected Because
of Fault In TitIe-Rhtnehart
va. Lugo Also De-
cided.

cided.
Two important cases were decided by
Judge Van Dyke yesterday, in depart
ment four of the superior court, in
both OF which he handed down interest
ing opinions.
The case of Fl. A. Barclay ct al. vs..
Caroline Severance ct al, in which
plaintiffs sued for about 5000, was
decided in favor of the defendants.
Messrs. Barclay and Wilson, the
plaintiffs in the action, sought to secure
a judgment against the defendants for
the sum above mentioned. They al
legged that they had contract with the
defendants whereby they were to have
certain percentage OF the purchase
price OF about 1000 acres of land situated
in the Rancho Muscupiabe, San Bernar-
dino county. The contract under which
they sought to recover was dated No
vember %. 1888 Plaintiffs alleged that
they found a purchaser for the property,
but that defendants could not give
satisfactory title and the deal fell
through. The contract, they claimed.
set forth that a good deed would be
given, though it was afterwards modi-
fled.
Judge Van Dyke quoted the letters
which passed between the parties in re-
gard to the contract and eale of the land
and then received the evidence. Ex-
tracts from the opinion, which is a
voluminous one, follow:
ION the trial of the cause the
plainfiffs thrnunh thoir .orpe.I ~.n
duced the code or statute of Utah, show
ing that the provision of law, generally
termed the statute of frauds in that ter
ritory, does not include the require
ment, as it does Ill this state, that an
agreement authorizing or employing an
agent or broker to purchase or sell real
estate for compensation or commission
shulld be in writing; but there was
nothing to show, and probably it could
not be shown, that the law of Utah pre-
vented parties from entering into a
written contract, even where by the law
contract was not require to be
in writing; and it was not shown that
the rules OF law in reference to writ
ten contracts, their alteration or inter-
probation, in the territory of Utah, were
any different from the law in reference
to the same matter in this state, and in
the absence of proof that the law of the
territory of Utah in these respects is
different from the law of this ate the
presumption is that the law is the same,
''As has already been seen the parties
to this action entered into written con-
tract-the contract Of November 23,
1883 and such contract is subject TO the
following rules OF law: The execution
OF contract in writing, where the law
requires it to be written or not, super
sedes all the oral negotiations ur siipu-
lations concerning lis matter which pre-
cede or accompany the execution of the
instru ument.' "A contract is to be inter-
preted according to the law and usage of
the place where 1t is TO be performed
The contract in question, although exc
cuted in salt Lake, WAS to be performed
IN this stare.
The plaintiffs counsel say in their
able argument on the subject that years
of labor and many thousands of d ,ilars
expended by plaintiffs tor the defend
ants, as shown by the testimony in the
case, without dollar Of remuneration
having been received, should entitle
them to recover unless there is some
! principle of law to prevent it. / have
fully considered the claim here made.
meruit instead OF being ioundtd upon
an express contract, the appeal would
! be entitled 10 consideration, but the
difficulty is, as suggested by the counsel
in their appeal, that principles OF law in
this case, as already shown, prevent re-
covery, and the court is not prompted to
make or alter con. racts for parties nor to
mold the law to suit a particular case. 1t
might, however, in this connection be
remarked that although the plaintiffs
did eXpend a large amountoi money and
! devote a great deal OF time for the pur-
| pose OF effectug sale under the agree
ment, yet all this expenditure of money
and loss OF time on the part OF the
| plaintiffs resulted in no benefit to the
defendants, as the whole business
proved a failure.
Findings and judgment therefore
must go for the defendant..''
RHEINHART VS.. LUGo.
| In the case of VIM. V. Rheinhart vs.
Felipe Lugo, ct al. the defendants also
secured judgment. The suit was for the
partition of lots A. b, G, D, and Il, of
| the Felipe Lugp tract on the San An
tonic Rancho. The plaintiffs title to
the property TESTS upon two mortgages
given to secure prolnissory notes aggre
| eating $500. and on which he brought
suit 10 foreclose and received judgment
order OF sale, finally coming into owner
| ship of the land hy deed executed to
him by the sheriff. The court held that
the title claimed by Rheiuhart is void
| because OF the uncertainty in descrip-
tion of the property in the mortgages,
and which the court SAID is not helped
out by the decree OF foreclosure and sale