Maxfield v. Bierbaur ( 1862 )

By the Court

Blandean, J.

Upon a full and careful examination of the testimony in this case, we are clearly of opinion that the jury was authorized in finding that the contract was made between Maxfield and the Bierbaurs for both lots four and five. It nowhere appears that Wm. Bierbaur was authorized to contract for Dr. Dombergh, but on the contrary it is clearly stated in Dombergh’s testimony that he had no such authority. He swears distinctly that he jumped the lot, which is very' well understood in this country, to mean, that he entered into the possession of it in spite of all other claimants. This jumping was after the contract between Maxfield and Wm. Bierbaur, and Dombergh jumped it from Bierbaur, if it all. It is quite evident that Wm. Bier-baur had it in his mind at the time of the negotiation with Maxfield, that Dombergh wanted the lot five, and would take it from him; but he negotiated for both lots, and had no right at all to speak for Dombergh. There is quite enough evidence to support the finding of the jury on this point.

In regard to the quit-claim deed made by Maxfield to Com-stock, previous to the sale to the Bierbaurs, it is evident that the land was included by mistake in that deed-, and that Corn-stock surrendered any claim he might have had by failing to file a statement with the trustee under the town site act. The Bierbaurs have nothing to complain • of in this behalf. They have received all they contracted for.

Tkere must be judgment for the Plaintiff on the verdict, such as it entitles him to.

The order granting a new trial is reversed.