Olson

The decision in Jackson v. Torrence, 83 Cal. 521 , does not, in my opinion, apply to the' facts of this case, but I concur in the judgment on the ground that Lovell’s contract to convey his interest in the Sacramento lot cannot be enforced, except upon condition of giving him what he bargained for; viz., a half-interest, undivided, in the Placer land, with Judson for co-tenant. He did not agree to take such interest with plaintiff as co-tenant, nor did he agree to take a divided half of the land in severalty. He has never been offered, and he cannot get, what he agreed to take. Therefore he cannot be compelled to convey; and for the same reason he is not liable in damages, unless, as suggested by Justice McFarland, for fraud or deceit.

Plaintiff brought this action to compel defendant to specifically perform a certain contract for the conveyance of land. Defendant demurred on the general ground of want of facts, and also on certain special grounds. The demurrer was sustained, and judgment was rendered for defendant. Plaintiff appeals.

It appears from the complaint that on January 21, 1890, a certain written contract was entered into, which purports upon its face to have been made by plaintiff as a party of the first part, and the defendant, C. A. Lovell, and one F. E. Judson, as parties of the second part. By this contract, plaintiff was to convey to defendant and Judson a certain tract of land in Placer County, and pay them $1,750; and defendant and Judson were to convey *507 to plaintiff a certain lot of land in Sacramento City. The contract was signed by plaintiff and by defendant, but was not signed by Judson. Judson’s name was signed to the contract by defendant, in this manner: “ F. E. Judson, by C. A. L.” There is nothing else on the face of the contract, or in any way attached to it, to intimate that defendant was the attorney in fact or agent of Judson; and he does not assume to sign Judson’s name as…