by the evidence. The defendant by his an- | into at the time of the execution of the swer admits the execution and delivery of notes and mortgage, and was not a part the notes and mortgage, and the non-pay- of the same transaction; that the defend. ment of the two notes in suit. The only ant never paid him any money but the affirmative defense interposed other than amount of the first note, after which he reone based on the alleged sale of the notes leased from the mortgage lien eight lots, by the plaintiff to another person prior to at the request of defendant, who did not bringing the suit, and that the third and ask for the release of any other lot or lots last note had not matured, was that, pur- until long after the second note matured, suant to a contract made with and as a and defendant had been asked several times part of the mortgage, providing for the re- to pay it; that the eight lots were released lease of lots from the mortgage on pay- with the understanding between himself ment of $250 for each lot, not less than two and defendant that the remaining sixty-two to be released at a time, and in equal num-lots should remain as security until the full bers, on the east and west side of the amount secured by the mortgage should be blocks, he, the defendant, sold eighteen lots, paid. Thus it appears from the defendand plaintiff, although requested to release ant's own testimony that the finding assuch lots, released but eight, and refused to sailed by him is not only supported by the release the other ten lots. Upon this de- evidence, but more favorable to him than fense the court found, in the finding assailed he was entitled to. After he paid the by the appellant, that only four "east- amount of the first note, and obtained the side" lots, of the ten lots described in de- release of eight lots, and rested apparently fendant's answer, in addition to those re- satisfied for some time without making any leased prior to the commencement of the demand for the release of any other lots, suit, should be released from the mortgage he was not entitled to the release of any lien. The court also found that the mort- additional lots without paying the price gage was given by the defendant to plain- therefor required by the contract, and maktiff on the 8th day of July, 1887, to secure ing a demand for specific lots, not less than three promissory notes for the sum of $13,- two in number, and an equal number on 750 in the aggregate, with interest, the said the east and west side of the blocks. We amount being the remainder due on the therefore advise that the judgment and orpurchase of a portion of the property cov- der appealed from be affirmed. ered by the mortgage. And at the time of the execution and delivery of the notes and mortgage, and as part of the same transaction, plaintiff and defendant made and reduced to writing, in a paper separate from the notes and mortgage, an agreement, whereby the plaintiff agreed to release from the lien of said mortgage any lots therein described whenever the defendant might desire to sell any of them, upon the defendant paying to plaintiff the sum of $250 for each lot released: provided as many lots were sold by defendant upon the east side as upon the west side of each block, and not less than the release of two lots demanded at a time; and also found that the first of the three notes was paid, leaving the two others unpaid, and $10,779.82 due thereon, including an attorney's fee, as provided for in said notes; that the plaintiff was the owner of the notes; and that the last note had matured at the commencement of the suit.

We concur: VANCLIEF, C.; FOOTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order are affirmed.

PETERSON V. WEISSBEIN et al. (No. 13,051.) (Supreme Court of California. July 27, 1889.)

RES JUDICATA.

Where, in a suit between plaintiff and defendant's grantor, it has been determined that a judgland in question, was valid, the question is res ment, under which the latter has purchased the judicata in a suit between plaintiff and defendants.

In bank. Appeal from superior court, Nevada county; J. M. WALLING, Judge. For statement of facts and former opinion, see 16 Pac. Rep. 769.

P.F. Simonds and F. Searls, for appellant. A. Burrows, for respondents.

The only evidence in the statement on motion for a new trial, aside from that of WORKS, J. On a former appeal this cause the contract for the release of lots from the was reversed on the ground that the defendmortgage lien, and the testimony of two ants, who relied upon a constable's deed to witnesses on the question of attorney's fees, establish their title, had not made out their is the testimony of the plaintiff and defend- case, for the reason that they had failed to ant. The defendant, in substance, testified introduce in evidence the judgment and exthat he executed the notes and mortgage, ecution on which the deed was based. Peand in connection therewith, and as part terson v. Weissbein, 75 Cal. 174, 16 Pac. Rep. thereof, he and plaintiff entered into the 769. On a second trial this evidence was supcontract for the release of lots from the plied, and judgment was again rendered for mortgage; that he sold eighteen of the lots the defendants. The plaintiff objected to covered by the mortgage, and requested the introduction of the judgment and exeplaintiff to release ten lots in addition to cution in evidence, on the ground that the the eight previously released; and that the judgment was invalid. But it was shown only money he ever paid plaintiff was the by the evidence that in an action between amount of the first note; never paid $250 the plaintiff and the defendants' grantor, or any other sum for the release of any par- who was the purchaser at the constable's ticular lot, and did not tell plaintiff what sale, it was determined by the judgment of particular lots he wished released under the the court that the judgment of the justice'n contract. The plaintiff testified, in sub-court and the sale under it were valid. stance, that the contract was not entered This adjudication was conclusive as to tl

We concur: SHARPSTEIN, J.; MCFAR-purchaser was allowed to believe that the title had LAND, J.; PATERSON, J.; THORNTON, J.

BELLEGARDE V. SAN FRANCISCO BRIDGE Co. reach. Plaintiff, the assignee of the purchaser, did

therefor, in the words and figures follow- deed. F. H. HALL, Manager of Pomona ing: "$50. Pomona, September 30, 1882. Land & Water Company." [Scal.] Recd. of W. M. Bayles fifty dollars on ac--That on the 24th day of January, 1883, the count for lot 6, block 32, for which a con- said Bayles, for a good and valuable considtract will be given on payment of balance eration, assigned and transferred to the of one-third of contract price of two hun- plaintiff all his interest in said lot and said dred dollars. F. H. HALL, Agt. for Pomo- agreement, and the plaintiff thereupon enna Co.' That within a few days there- tered into possession of said lot, with the after, on the 30th day of October, 1882, in knowledge and consent of Hall, agent as pursuance of their plan for the sale of said aforesaid, plowed the whole of said lot, and lots and lands, said Mills and Wicks formed put substantial improvements thereon; with others a corporation by the name of that said Bayles and the plaintiff kept and the Pomona Land & Water Company, with performed all the conditions of said agreeits capital stock divided into 5,000 shares; ment to be kept by them, paid the sum of that Mills and Wicks owned 4,180 of said $66, the first payment of said purchase price, shares, and the other three shareholders and tendered to the Pomona Land & Water necessary to form a corporation represented Company the sum of $67, and interest there820 of said shares, and for the purpose of on to date, according to the terms of said carrying out said enterprise for the sale of agreement; that on the 28th day of Sepsaid lots and land they transferred the tember, 1883, and on the 29th day of Sepsame to said corporation, excepting from tember, 1884, plaintiff tendered the said the operation of said assignment all lots company the sum of $134, and interest thereand land already conveyed to them by on to date, being the whole balance of said Louis Phillips, and that Hall continued to purchase money, according to the terms of act as agent for the sale of said lots in the said agreement, and demanded the execusame manner as before said transfer; that tion of a deed of conveyance; and the comsaid Hall made 39 sales of said lots and pany refused to accept said payments and lands, including the sale of the lot in ques-execute the deed, but made no objections to tion to Bayles, as such manager and agent the terms thereof, or to said tenders; that for Mills and Wicks; that before they as- on the 27th day of November, 1886, he tendsigned the same to said company, and aft-ered to the defendant the sum of $176.90, erwards, the said Mills and Wicks supplied being the full amount of the purchase money said agent, Hall, with printed blanks, con- remaining unpaid, and tendered a deed of taining the name of the said Pomona Land bargain and sale for execution, and the de& Water Company, printed thereon as ven- fendant specified no objections to said tendor, and instructed the said agent, Hall, to der, nor to the terms of said conveyance, use the same in making contracts for sales but declined to receive said purchase money, thereof to be made, and expressly directed and refused to execute said conveyance; and instructed said agent to fill out said that by a deed dated December 4, 1882, Louis blanks with the terms of sale, and deliver Phillips conveyed said lot to said Mills and them to all purchasers, including said Wicks, and by a deed dated February 23, Bayles, to whom sales of lots had already 1883, said Wicks conveyed his interest there been made by them in their individual ca- in to said Mills, and by a deed dated Seppacity; and that Hall carried out said in- tember 21, 1883, while plaintiff was in posstructions, whereby Bayles was induced to session of said lot under said agreement, believe that said agreement was adopted Mills, knowing that plaintiff was so in pos by said company; that on the 21st day of session, conveyed said lot to one Charles September, 1882, Bayles, under and in pur- French, who had full knowledge of plainsuance of his said agreement, paid to Hall, tiff's possession under said agreement, and then acting as the manager and agent for the other facts herein set forth, and that the sale of said lots and lands, the further French was in the employ of said Pomona sum of $16, and that Hall, pursuant to said Land & Water Company under said Mills instructions given as aforesaid, filled out and Wicks, and paid no consideration for and delivered to Bayles one of the said said conveyance; that Mills died on the printed blanks, supplied by Mills and Wicks 20th day of April, 1884, and his wife was apfor the purpose, in the words and figures pointed his administratrix, and included following: this lot in the inventory of the property of "POMONA LAND AND WATER COMPANY. said estate; that in May, 1883, the plaintiff "Pomona, Los Angeles, September 23, had notice that the Pomona Land & Water 1882. Received of William Bayles, fifty dol- Company repudiated the alleged agreelars, deposit on contract for purchase of lot ment; that said French, from the time of six, (6,) in block thirty-two, (32,) according his deed from Mills, asserted to plaintiff his to the map of Pomona. Contract duly re-ownership of the lot, and disputed the poscorded in book 3, pp. 90 and 91, of miscella- session thereof; that French, some time in neous records of Los Angeles county, sub- 1884, removed plaintiff's improvements, but ject to the conditions in a formal contract plaintiff replaced them within two or three as to cleaning streets, improvements, etc., months, and for a short period of that year said price being $200, and terms of pay- leased the premises; and that the house ment, $16 to make the one-third on demand, and fence erected by him remained on the $67 payable September 28, 1883, $67 payable property until removed by the defendant in September 28, 1884. Deferred payments to October, 1886; and that French, for a short bear 8 per cent. interest, payable annually. time just previous to his deed to defendant, And the said William Bayles, in considera- leased the property; and that the defendtion of the premises, hereby agrees to pur- ant entered on the let October 20, 1886, but chase said property for the same price and did not oust plaintiff; that in February, on the terms above set out; this to be sur- 1883, said Wieks, as attorney for the Pomo rendered on delivery of formal contract or na Land & Water Company, wrote the

findings where they support their case, and where they are against them the findings are ignored, and the evidence in respondent's favor, and against said findings, is used instead. By thus combining the two, and holding fast only to that which seems to them to be good, they have convinced themselves that "the case is too plain for argument." This we cannot do, and perhaps for that reason we are unable to agree with counsel. Taking the facts as we have them in the findings we consider the points relied upon by the respondent:

1. As to the point that the original receipt given at the time the first payment of $50 was made was not sufficient, we agree with counsel; but this was not intended to constitute the contract, but simply as a memorandum showing the payment of the money, and it was stated therein that a contract would be given upon the payment of the balance of the one-third payment; and such a contract was afterwards executed. For this reason we regard this receipt as of no great importance.

plaintiff a letter, notifying him that Hall contract subsequently given by Hall, were had acted without authority in making the not executed by the then owners, Wicks and contract, and that the same was repudi- Mills, but by the Pomona Land & Water ated, and offered him $100 if he would re- Company, in its name, and were otherwise turn the receipt for cancellation, but that indefinite and insufficient. (4) That the Wicks had not been authorized by the com- action was commenced too late. In discusspany to write such a letter; that neither ing these questions counsel for respondent Wicks nor Mills knowingly or intentionally have not confined themselves to the findratified or confirmed the contract, or vol-ings, but have very ingeniously used the untarily accepted any benefits or obligations thereof; that the said Mills and Wicks, by their acts and conversation aforesaid, induced the said Bayles to purchase said lot from them by their said agent, Hall; that said printed blank was used, and the agreement in the name of the Pomona Land & Water Company delivered as aforesaid by Hall, agent as aforesaid, and accepted by Bayles because Mills and Wicks instructed Hall to use the same for that purpose, and not by reason of any fault or neglect of said Bayles or the plaintiff, and the use thereof caused Bayles to believe that said agreement was adopted by said company, promoted by said Mills and Wicks as aforesaid; that the use of said printed blanks caused the plaintiff to believe that said sale was in fact originally made by said company, as therein specified; that Mills and Wicks never demanded payment of the balance of the purchase money of said lot, nor communicated to plaintiff the fact that said sale was made by them in their individual capacity, but, on the contrary, further gave the plaintiff cause to believe that said sale was made by said company, and denied that plaintiff had any interest in said lot, and attempted to disaffirm said sale, alleging as a ground that said Pomona Land & Water Company never acquired title to said lot, and that, therefore, said Hall never had authority to sell the same; that all the deeds of conveyance referred to above were recorded immediately after their respective dates, and the plaintiff had constructive notice thereof; and that about the time the defendant ousted plaintiff, as aforesaid, plaintiff first learned that said sale was made in the actual presence of said Mills and Wicks, under their direction, for them, in their individual capacity, by said agent, Hall, and that said Mills and Wicks had taken a conveyance of said lot from said Louis Phillips to themselves, and recorded the same on the day preceding said transfer of their said contract with Louis Phillips to said company, and thereby prevented said company from acquiring title to said lot; that the plain tiff's supposed cause of action is not barred by the statute of limitations. This suit was commenced December 10, 1886. On these findings the court concluded in favor of the defendant, and the plaintiff appeals. It is contended by the plaintiff that he was entitled to judgment on these findings, and that the cause should be reversed on that ground. In this contention the appellant is clearly right. We do not know upon what ground the court below concluded that the plaintiff's case was not made out, but counsel for respondent attempt to justify the decision on four grounds: (1) That the original receipt given by Hall did not constitute a sufficient contract of sale. (2) That Hall had no authority to make the sale, not having been authorized in writ ing. (8) That the original receipt, and the

We regard the question of Hall's authority to make the sale as of no greater consequence, in view of the other facts found. It may be conceded that an appointment in writing was necessary to authorize him to make a binding sale, (Civil Code, § 1624,) and that no subsequent parol ratification or acknowledgment by the principal is sufficient. Videau v. Griffin, 21 Cal. 390; Blum v. Robertson, 24 Cal. 142. But here the sale was in legal effect made by the principals. Videau v. Griffin, 21 Cal. 391, 392. It was made in their actual presence, and, at the request of one of them, the money paid was handed to the other immediately. It is true the court finds that the sale was not made under the personal direction of the owners, and that they did not knowingly or intentionally ratify or confirm the said contract of sale, nor voluntarily accept any of the obligations or benefits thereof, but these conclusions are clearly disputed by the facts found. They did voluntarily receive the cash payments at the time it was made, and the court finds that they afterwards instructed Hall to make a contract for the property. The facts show that the only reason for the finding that they did not knowingly or intentionally ratify or affirm the contract of sale was that they did not know the location of the lot, or, in other words, the lot was a better one than they supposed when they sold it and accepted the purchase money, and therefore they wanted to escape from the contract.

The findings further show that the purchaser took possession under his contract, and made valuable improvements on the property with the knowledge of these par ties. Besides, the court finds, throughout these findings in various places, that Hall was the agent of these parties, and that they did the acts relied upon by the plain

by their said agent, Hall," which, it seems to us, presents the strongest possible case against them. If they did not know the location of the lot that was being sold, as claimed, their want of knowledge must be attributed to their own want of care. They cannot, in view of these facts, be heard to deny such knowledge. It is contended that this was not the contract of Mills and Wicks, but of the Pomona Land & Water Company. It is true, the contract is signed by Hall as the manager of the company, but the findings show clearly that the contract was that of Mills and Wicks, and that they had, before the organization of the corporation, adopted and used the name afterwards given to the corporation, and that they instructed their agent, Hall, to prepare and sign the contract in that form. They had the right to adopt and contract in a name not their own, and, having contracted in that name and received the benefits thereof, they cannot be allowed to impeach it on that ground.

tiff through him. The court finds in one place that Hall did not have "full" authority; but what is meant by the word full in this connection is left to conjecture. The finding on the point is: "All allegations of the several paragraphs of the complaint, which are respectively numbered and marked 2, 3, 4, 5, and 6, are true, except that F. H. Hall did not, as alleged in paragraph 2, have full authority to act for the said Mills and Wicks in the sale of the lots and lands referred to therein; but, if it be essential, I am unable, from the evidence, to define with exactness the extent of his general authority." This finding as to authority relates, not to this sale particularly, but to an allegation in the complaint that Hall was appointed to be manager at Pomona, "with full authority to act for them" in the sale of all of the lands then held for sale by them at that place, and the following specific allegation of the complaint, relating to this particular sale, is found to be true: "That on the 28th day of September, 1882, the said Mills and Wicks were in pos- Again, it is urged that the contract was session of the said lot of land hereinabove too uncertain and indefinite to authorize particularly described, under said agree- the relief sought. We do not think so. ment for the purchase thereof from Louis The land is accurately described; and the Phillips, and did then at Pomona aforesaid, amount, and time of making the payments, by their said agent, F. H. Hall, make and are clearly stated. There are but two eleenter into a verbal agreement with one ments of uncertainty in the contract. It is William Bayles, whereby the said Mills and made "subject to the conditions in a forWicks agreed to sell, and the said William mal contract as to clearing streets, imBayles agreed to purchase, the said lot of provements," etc. This evidently refers to land described as lot 6, as aforesaid, for the a "formal contract that was expected to sum of $200, on the terms set out in the sev-be made in the future, and, if it was too unenth paragraph of this complaint." And the court further finds in express terms that the allegation of the complaint is true that they instructed their said agent to make out this and the other contracts, where sales had been made, and how to make and execute them, and that in pursuance of these instructions he did execute the contract, and that the plaintiff, as the assignee of said contract, entered into possession and made improvements. This, it seems to us, was a sufficient finding of the agency; but, if not, the conduct of the vendors of the property was such as to estop them from denying it, or asserting any claim to the property on the ground of his want of authority. To permit the vendors of land to repudiate the acts of their supposed agent, under such circumstances, would be to sanction a clear and palpable fraud, and this cannot be done, even under the guise of the statute of frauds. Sedg. & W. Tr. Title Land, §§ 844-847; Fry, Spec. Perf. 259, 260; Bigelow, Estop. (3d Ed.) 470, 513. It is a well-settled rule of estoppel that one who with knowledge accepts the proceeds of an unauthorized sale of his property is estopped to dispute the validity of the sale. Goodman v. Winter, 64 Ala. 410,433; France v. Haynes, 67 Iowa, 139, 25 N. W. Rep. 98; Schenck v. Sautter, 73 Mo. 46; Moore v. Hill, 85 N. C. 218; Field v. Dovon, 64 Wis. 560, 25 N. W. Rep. 653; Booth v. Wiley, 102 Ill. 84, 107. See, also, as bearing on this point, Escolle v. Franks, 67 Cal. 137, 7 Pac. Rep. 425. In this case the vendors stood by and saw the sale made, and accepted the purchase money, in the presence of the vendee, and the court finds that they, "by their acts and conversation aforesaid, induced the said Bayles to purchase said lot from them

certain to uphold this clause or to bind the vendee to the condition attempted to be imposed, it can furnish no ground upon which the vendors could repudiate the contract. It is nowhere shown that the refusal to consummate the agreement was ever placed on any such ground, or that any question was ever made as to the conditions intended to be imposed by this clause in the contract. If such a "formal" contract existed, and the parties contracted with reference to it, the question might have been raised in respect to the form of the deed, when demanded, and, if a deed with the conditions relied upon had been refused, the vendors might have been justified in refusing to execute one without such conditions. But we do not regard this as such an element of uncertainty as will vitiate the whole contract. The court finds that no objection was made to the form of the deed tendered for execution when the purchase money was tendered. The further objection made to the contract is that it provides that it shall be surrendered "on delivery of formal contract or deed." The apparent reason for having drawn the contract in such form as to call for either a contract or a deed is that at the time the contract was executed the vendors had no deed, but were holding under a contract. It was the evident intention that if they procured a deed before the final payment of the purchase money a deed was to be executed; if not, a contract for a deed. But, whether this be so or not, it clearly appears from the contract itself that the vendee was to have their title to the property upon payment of the purchase money, and the time was definitely fixed by the time of the final payment of the purchase money,