STROMERSON ET UX v. AVERILL

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District Court of Appeal, Third District, California.

STROMERSON ET UX. v. AVERILL.

Civ. 6683.

Decided: January 24, 1942

W. M. Conley, Philip Conley, Matthew Conley, and Conley, Conley & Conley, all of Fresno, for appellants. Barcroft & Barcroft, of Madera, and David E. Peckinpah and L. N. Barber, both of Fresno, for respondent.

This is an action to quiet title brought by H. C. Stromerson and Leone Stromerson, his wife, against Roger Averill. In his amended answer Roger Averill asked that his title be quieted against H. C. Stromerson and wife.

Prior to the transactions involved in this case, H. C. Stromerson had been acquainted with Averill for many years, and had worked under him on several public construction jobs. While Stromerson and wife were living in Los Angeles, California, Averill sought to interest them in going to Madera County, California, for the purpose of farming certain land there. On the 6th of November, 1933, the Stromersons moved to Madera County, and on the 1st day of November, 1933, entered into a contract with Miller & Lux, Inc., a corporation, for the purchase from said corporation of 160 acres of land in Madera County. Subsequently the Stromersons received a loan from the Federal Land Bank with which they paid up the balance due on the 160 acres of land and received a deed from Miller & Lux, Inc., to the land. On the 6th day of March, 1936, H. C. Stromerson entered into a contract with Miller & Lux, Inc., a corporation, wherein he agreed to buy from said corporation a tract of land adjoining the 160 acres already purchased. This later tract of land contained 562.55 acres and was located in Section 19, Township 11 South, Range 16 East, Madera County, California. (Title to the 160 acre piece of land is not involved in this suit.) At the time the Stromersons moved to Madera County, Averill already had associated with him in his land enterprises, a man by the name of P. A. Davis, and a man by the name of J. F. Lincoln. There were some 475 acres of land in Section 10 in said county standing in the name of P. A. Davis, and 650 acres in Section 23, standing in the name of Roger Averill. Upon the Davis land there was a loan of approximately $36,500 from the Federal Land Bank, and upon the land standing in the name of Roger Averill he had borrowed approximately $36,000 from the Federal Land Bank. All of the land, including that standing in the name of Roger Averill, that standing in the name of P. A. Davis, and the land involved in this suit, was jointly farmed. The money for the payment of the land, and for the farming of the same, came from personal advances by Roger Averill, and from money advanced by the San Joaquin Cotton Oil Company, for crops raised, and to be raised on the land, and also from sales of crops to parties other than the Cotton Seed Oil Company.

There is a great deal of evidence bearing upon the transactions and relationships existing between H. C. Stromerson, Roger Averill, P. A. Davis and J. F. Lincoln.

In their pleadings, and throughout the trial, H. C. Stromerson and Leone Stromerson, his wife, maintained that the contract entered into by Miller & Lux, Inc., a corporation, as seller, and H. C. Stromerson, as purchaser, was for the sole benefit of the Stromersons. On the other hand, Roger Averill maintained that in the entire transaction, H. C. Stromerson was acting as his agent.

The trial court found that the contract of purchase pertaining to the 562.55 acres by H. C. Stromerson, on the one part, and Miller & Lux, Inc., a corporation, on the other part, was in truth and in fact the contract of Roger Averill, and that he executed said contract by and through H. C. Stromerson, who was acting as his agent, and that Roger Averill had been in possession of the land ever since the date of the execution of the contract, and that H. C. Stromerson and Leone Stromerson, his wife, had neither in law nor in equity, any right, title or interest in or to the land, and that Roger Averill is in equity the owner of the same, and is entitled to receive a conveyance of said land from Miller & Lux, Inc., a corporation, upon full performance of the terms and conditions of said contract on the part of the purchaser. The trial court then gave judgment quieting the title of Roger Averill, and adjudging that H. C. Stromerson and Leone Stromerson, his wife, have no right, title or interest in the premises. From this judgment H. C. Stromerson and Leone Stromerson, his wife, appeal.

One of the main contentions of the appellants is that their complaint contains the allegation “that the property involved in this suit is the community property of H. C. Stromerson and Leone Stromerson, his wife,” and that inasmuch as this allegation is undenied in the amended answer of Roger Averill, that this fact is deemed as admitted and must be considered as found by the court. In the amended answer there is the following denial: “Denies that by reason of said contract of purchase and sale, or otherwise, the plaintiffs, or either of them, became, or ever since have been, or now are, or ever were, the equitable owners, or owners at all, of said real property, or any portion thereof, or the equitable owners, or any owners, of said contract.” This appears to be a full denial of any ownership of plaintiffs, or either of them in the contract or the property mentioned therein. The balance of appellants' contentions, with the exception that the court erred in ruling on admissibility of evidence and that the judgment fails to do equity, falls into one class, namely, that agency was not proven, and that if it was proven the evidence admitted violated the parol evidence rule or the statute of frauds. The following sections of the statute of frauds seem to be applicable in this case:

Section 1624, Civ.Code––“The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged or by his agent: * * * 4. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged.”

Section 2309, Civ.Code––“An oral authorization is sufficient for any purpose, except that an authority to enter into a contract required by law to be in writing can only be given by an instrument in writing.”

Section 2310, Civ.Code––“A ratification can be made only in the manner that would have been necessary to confer an original authority for the act ratified, or where an oral authorization would suffice, by accepting or retaining the benefit of the act, with notice thereof.”

Applying, first, section 1624, Civ.Code, we find that the term “party sought to be charged” is defined in the case of Harper v. Goldschmidt, 156 Cal. 245, 104 P. 451, 28 L.R.A.,N.S., 689, 134 Am.St.Rep. 124, as meaning the person charged in court with the performance of the obligation. If Miller & Lux, Inc., were being sued for performance of the contract, the section would not avail it, because it signed the contract, and if Stromerson was being sued by Miller & Lux, Inc., the same reasoning would apply to him. If Miller & Lux, Inc., were suing Averill, he could avail himself of this section, and also section 2309, Civ.Code, unless it were held that he had ratified the contract. However, Averill, by appearing in the suit and setting up the claim that he was the real purchaser under the contract, and that he was the equitable owner of the land mentioned in the contract, in effect ratified the action of the agent in entering into the contract. This, however, is a suit between the principal and the agent. It has been repeatedly held that whenever an agent, improperly authorized in the first place, performs acts in the execution of the agency which are ratified by the principal, the principal is entitled to enforce his demands against the agent for anything which the agent has received on his account. McBride v. McCartney, 53 Cal.App. 707, 200 P. 756; Troendle v. Clinch, 125 Cal.App. 147, 13 P.2d 852. These cases were decided at a time when the provisions of sections 1624, 2309 and 2310 of the Civil Code read the same as they now do, and were cases in which the agent was attempting to hide behind the terms of the statute of frauds.

Proof dehors a written contract that one of the named parties thereto signed it as the agent of the real party in interest is not a violation of the rule prohibiting the use of parol evidence to vary the terms of a written contract. Otten v. Spreckels, 24 Cal.App. 251, 141 P. 224; Hay v. McDonald, 21 Cal.App. 204, 131 P. 74.

It is contended that the decree is fatally defective in its failure to require the defendant to do equity. So far as such a contention applies to payments on the contract, and to the cost of farming the land mentioned therein, we feel that it is unsound. The trial court decided that Stromerson was the agent and employee of Averill, and that he was paid a salary for his efforts. Although the evidence is conflicting as to where the money came from for the operation of the farm and the payments under the conditional sales contract, there was adequate proof to justify the court in believing that it was Averill's money, and although there is no specific finding on this point, it would of necessity follow from the court's decision. However, it is true that the Stromersons are contingently liable for the balance of the payments under the contract with Miller & Lux, Inc., and it would be entirely inequitable in this action to turn the fruits of the contract and the security of the equitable interest in the land over to Averill without requiring him to protect the Stromersons against future liability under the contract.

Appellants claim that numerous errors were committed by the trial court in rulings on admissibility of evidence. We find no errors in the rulings in the rejection or admission of evidence which would justify a reversal of the judgment.

It is ordered that the judgment be modified to require respondent to relieve appellants from their liability under the contract, within a reasonable time to be fixed by the court, and upon such being done, respondent's title in and to the contract and the equitable ownership of the land thereunder be adjudged quieted.

CURLER, Justice pro tem.

THOMPSON, Acting P. J., and TUTTLE, J., concurred.