The record-union., 1896-08-13
AN IMPORTANT DECISION.
Rendered by Judge McKenna Of the
Circuit Court.
The Late Edgar Mills Estate Not Re-
sponsible for Damages to
A. E. Gray.

Real estate owners and agents and
lawyers generally will be especially in
terested in a decision just handed down
by Judge McKenna in the United States
Circuit Court. The title of the suit is:
Albert e. Gray VS.. S. Prentiss Smith
and Frank Miller, executors Of the es-
tate of Edgar Mills, deceased
1t is an action for damages for the
non-performance of a contract for the
purchase or exchange of lands.
In Letter to Albert E. Gray, dated
September 16, 1891, the late Edgar
Mills wrote as follows:
Dear Sir: Provided you take the fol-
lowing described property, situate in
Iehama and Colusa Counties, as part
payment UP to $115,00O, I hereby make
you an offer to purchase the lot, situate
on the south side of Market street, in
san francisco, extending through to
stevenson street, lying on east side of
and adjoining Central Park and run
ming east thence 8211a feet by a depth
OF 100 feet, at the price of $24O, 900,
namely, in cash $125, 900, and in land as
above. Sis, 900.
This offer is to hold good for three
weeks from this date, to enable you to
inspect my said lands.''
Gray, on the 9th of October, 1891,
answered the letter, accepting the said
offer.
THE non-performance of the con-
tract" says Judge McKenna in his de-
cision, "is admitted, and is sought to
be excused or damages averted.
Mills obligation was to Gray, and
the evidence certainly leaves an i'm
portant matter in very dangerous am
blguity, and this without inferring any,
thing from the silence which the statute
imposes upon the living party to a
transaction in litigation with the estate
OF the deceased one. But ambiguous
testimony may have more than one ex-
planation, and certainly the burden of
proof in this issue is not on the plaintiff.
We may accept, therefore, as deter
mined In favor of plaintiff the fact of
the assignment of the contract by ]. H.
Cavanaugh to his wife, which was writ
ten by Gray, as evidence that they had
not acQuieSced in a release of Mills.
THE contract of Donohoe was to con-
vey to Mills upon the payment of $780,
OOO and the taxes. The contract of
Mills, however, was to pay $685. 900 and
certain lands. There was then S45,-
O09, besides the taxes, to be paid by
Gray q omit Cavanaugh's name for
convenience, and this money he ex-
pected to raise on the country lands
conveyed to them by Mills. This makes
Gray's ability to perform not inde-
pendent of Mills performance, as the
principle would seem to require, but
dependent on Mills performance.
''The obligations between Gray and
Mills were mutual, as binding on one
as the other; they were dependent, the
performance by one being the consider
alton of the performance by the other;
concurrent that is, the performance by
each must be at the same time as that
by the other. Could this be If the
ability be not also concurrent, but may
wait on either side the performance on
the other?
1T follows that the last contention Of
defendants is correct, and there was not
an ability to perform shown (by plant
iff) which is a necessary condition Of
the recovery of damages.
Judgment will be entered for defend
ants, or rather defendants will prepare
findings and submit them to the other
side, and then judgment will be entered
for the defendants"