McNeil v. Shirley , 33 Cal. 202 ( 1867 )

By the Court, Sanderson, J.:

In measuring the power conferred hy Foster’s letter to Dodge, it is incumbent upon us to consider all the circumstances in view of which it was written. Foster supposed that he had already given Dodge full power to sell his lots in San Francisco. In view» of that fact it can hardly be supposed that he intended by his letter to hamper or circumscribe the power which his agent, as he supposed, already possessed, under a different instrument; which he must have supposed, if he thought about it at all, would he the true measure of his agent’s power so far as his vendees were concerned. In this view it seems clear to us that the statement, “ I want you to sell some of my lots, or advance the means to meet this administration act, before the year expires, which I send you by mail,” etc., is to be taken merely as a statement-of the circumstances or the reasons which made it necessary to make a sale, rather than as prescribing or imposing conditions upon the power to sell. Thereafter, in the broadest terms, Dodge is told to sell “ such lots as he sees fit,” and to exercise his own judgment as to the quantity or size of the parcels to he sold, and to reserve enough money from the sales to pay Geary. On the whole, we think it was Foster’s intention to sell lots enough to meet the calls of the “ administration act,” whatever that may have been, and to pay Geary, to whom he was indebted for the lots. This construction is borne out hy the subsequent conduct of Foster, who, when advised of what had been done, did not in his reply to Dodge claim that he had acted contrary to his instructions. It is true that he declined to make the sale valid, if invalid on account of any defect in the power of attorney given by him to Dodge before leaving the State ; hut neither then nor afterwards, so far as the case shows, did he ever pretend that Dodge had exceeded his powers or instructions as given in the letter. This circumstance is entitled to much weight in the determination of the question as to what was Foster’s intent, as expressed in his letter, touching the sale of the lots. So far as its terms go, we think the letter gave Dodge power to sell at his discretion.

The learned counsel for appellants claims that the transaction between Geary and Dodge was nothing more than an accord and satisfaction, and not a sale, and therefore void, even if we conclude that Dodge had power to sell. Doubtless, as claimed, a power to sell imports a sale for cash; hut counsel is in error in claiming that the transaction between Geary, and Dodge was not a cash sale. The evidence shows that a fixed sum in money was' agreed upon, which sum was the full market value of the land sold. True, the money was not actually paid by Geary to Dodge, but Foster’s note, which called for money, was delivered up instead. This was as much a cash transaction as it would have been had Geary actually paid the price in money to Dodge, and Dodge had then paid it hack in taking up Foster’s note, which would have been an idle ceremony.

The point made by counsel for the respondents to the effect that the letter from Foster to Dodge, though not under seal, was sufficient; by reason of the peculiar language-of the sixth section of the statute in relation to fraudulent conveyances, to authorize Dodge to make a valid deed in the name of Foster, it is unnecessary to determine. The deed to Bowman, if not valid as a deed for the want of a seal to the written power under which it was made, was nevertheless good as a contract to convey and the referee found that the plaintiffs’ purchase was with notice. Under the well settled practice of this Court, where there is a conflict of evidence, that finding cannot be disturbed on the ground that it is contrary to the evidence; but, aside from this consideration, we have looked into the evidence and think the finding correct.

Judgment and order denying motion for new trial affirmed.