A. C. BROWN and FRANCES BROWN, his Wife, v. THE CENTRAL LAND COMPANY, SHERMAN DAY, C. T. H. PALMER, CYRUS H. BRADLEY, FREDERICK B. HASWELL, EDWARD McLEAN, and JACOB HARDY, 42 Cal. 257

By Crockett, J., Sprague, J., concurring: The substance and legal effect of the contract between Taylor and plaintiffs may be summed up as follows: That the plaintiffs agreed that at any time within the two years next ensuing, Taylor might purchase for himself, or sell to others, the whole or any portion of the land now in controversy, at a price not less than one thousand dollars in gold coin per acre; but if sold for a larger price, the excess over that sum should go to Taylor; and on receiving the said sum of one thousand dollars per acre in ready money they would surrender the possession and execute a conveyance to the purchaser; but Taylor was not limited to sales for ready money, and might sell on credit, the term of which is not specified in the contract; and the conditions on which credit sales could be made, were: First—That ten per cent of the purchase money should be paid to the plaintiffs in ready money at the time of sale; Second—That the notes or bonds of the purchaser for the remainder of the purchase money, bearing interest after the two years limited in the contract between Taylor and the plaintiffs, at the rate of one and a quarter per cent per month, should be assigned and delivered to the plaintiffs for their security; but they were not to be required to surrender the possession or to convey any title until the whole purchase money and interest were paid, except that, in case one half of the purchase money was paid within the two years next succeeding the date of the contract between Taylor and the plaintiffs, they would, in that event, surrender the possession and convey the title to the purchaser, taking from him a mortgage on the property sold, to secure the remainder of the purchase money with interest.

This is the substance of the contract, as I interpret it, or of so much of it as it is necessary to recite. It will be perceived that the duration of the credit, if sales of that character should be made by Taylor, is not expressly specified or limited in the contract, nevertheless, the law will presume in such cases that it was the intention of the parties that the time of credit should be reasonable, and such as was usual and customary on sales of real estate in that vicinity.

The law will not impute to the plaintiffs the intention to enter into an absurd contract, whereby they delegate to another the authority to sell a valuable estate on credits to he absolutely fixed by the uncontrolled discretion of the agent, unless that intention is clearly expressed in the contract. When the plaintiffs entered into the contract with Taylor, it evidently never occurred to them that they were authorizing him to sell this valuable property on a credit of fifty or one hundred years, during all which time no interest was to he paid on the purchase money until the expiration of the credit.

I think it is obvious that none of the parties could have understood the contract as conferring on Taylor an authority so absurd as this, under which he might, practically, have sequestered the property and withdrawn it from commerce for an unlimited period. But his discretion in this respect was either absolute and unlimited, or it was subject to the condition that the credit must be reasonable and such as was usual and customary on sales of real estate in that vicinity. The latter is clearly the correct construction of this branch of the contract.

The answer avers that the sale to The Central Land Company was made within the two years, at a price exceeding one thousand dollars in gold coin per acre; that ten per cent of the purchase money was paid in cash, and promissory notes given for the remainder, payable seven years after date, with interest at one and a quarter per cent per month; and that the notes, properly indorsed, together with ten per cent of the purchase money, were tendered to the plaintiffs within the two years.

The transaction appears to have been in strict accordance with the authority conferred upon Taylor, unless the term of credit was unreasonably long, and in excess of the time usually allowed on credit sales of real estate in that vicinity. Whether a credit of seven years was unusual, and contrary to the general custom in that vicinity, is a question of fact to be decided on the testimony; and whether it was unreasonable, under all the circumstances, is a mixed question of law and fact, to be determined after the testimony is heard. There is nothing in the point that the contract was not mutual.

Taylor covenanted to cause the property to be subdivided, and a map of it to be made and recorded, at his own expense, and that he would use his best efforts to effect sales within the two years. This was a sufficient consideration on his part to support the contract. Nor did the contract establish between Taylor and the plaintiffs a relation of personal trust and confidence which precluded him from executing the contract of sale to The Central Land Company by an attorney in fact. Taylor’s powers were strictly defined by the contract.

He had no discretion to exercise in respect to the plaintiffs’ rights or interests, except in regard to the term of credit; and, as to that, the law restricts it to a reasonable period, with which the plaintiffs must be content, such being the legal effect of their contract. There was no relation of personal trust or confidence between them. The sale by Taylor to Haswell of one half his interest under the contract, cuts no figure in the case. They both united in the contract of sale to The Central Land Company, and it is immaterial whether Haswell had any interest in the contract or not.

As the facts are presented by this record, I think there is but one question in the case requiring a solution, to wit: Whether the credit allowed to The Central Land Company was in accordance with the usage and custom in that vicinity in credit sales of real estate, and was reasonable under all the circumstances. This question can only be decided after the testimony is heard. Judgment reversed and cause remanded, with an order to the Court below to overrule the demurrer to the answer. Rhodes, C. J., concurring: I concur in the judgment. Mr. Justice Temple did not participate in the decision.