101 Ind. 542 | Ind. | 1885
The appellee, Caroline E. Jones, sued the appellant, the complaint being in three paragraphs. In the first paragraph she showed that on the 30th of January, 1882, she appointed and employed the defendant as her agent to sell a certain farm then belonging to her, described, in Vigo county, said appointment being evidenced by a written • instrument set out, by the terms of which William A. Jones, Ijjfcsbandof the plaintiff, for her appointed the defendant as ageñt to sell said land “ at not less than $14,000, on the following terms: $5,000 down, $3,000 in one year, at six per cent, interest, and $6,000 in four years from December 18th, 1881, at seven per cent, annual interest; the same to remain in his hands for twelve months, and thereafter until withdrawn at my written request. If he furnishes me a buyer for said land at the price above stated during said period, then I agree to pay him two and one-half per cent, commission on the amount for which said property is sold.” Other provisions of the instrument need not be set out.
The second paragraph charged that the defendant was indebted to the plaintiff in the sum of $1,400 for money had and received by him to her use on a sale of real estate made by him for her to said Johnson in 1882, and which the defendant wrongfully retained and fraudulently converted to his own use.
The third paragraph showed said written appointment, on the 30th of January, 1882, of the defendant, who, it was alleged, was engaged in the business of buying and selling real estate on commission; that on the 19th of April, 1882, the defendant, as the plaintiff’s agent, contracted a sale of said farm to said Johnson upon terms set forth, being the same as stated in the first paragraph; that thereafter the defendant,
The defendant answered in three paragraphs, the first being the general denial.
The second paragraph was directed to the first and third paragraphs of the complaint, and alleged, in substance, that the defendant, pursuant to the written authority referred to in the complaint, tried to effect a sale to said Johnson but could not secure from him a definite offer; that Johnson contended that $14,000 was too great a price, and would make no terms except upon a cash basis, and would not and did not offer any definite price; that while it was uncertain as to what Johnson would give, defendant represented to the plaintiff that the sale to Johnson was in doubt on the terms of said appointment, but that he might agree to pay $12,600 cash and allow her to keep two-thirds of the crops for 1882, and that perhaps enough more could be obtained from him to pay the defendant for his trouble and expense; that the
In this writing nothing was said about the defendant’s compensation, and it was alleged in the pleading that the terms-of the agreement in relation thereto were not reduced to-writing, but were left in parol. It was alleged that this agreement was delivered to the defendant with a deed executed by the plaintiff and her husband conveying said real estate to said Johnson, the consideration being therein expressed as $14,000, it being expressly understood that if the-defendant could secure such use of the farm and more than $12,600 he was to retain the surplus over that amount as commission or compensation, and that if he could not obtain any greater price, he was to receive no pay from the plaintiff;, that he did effect a sale to Johnson within five days, for $14,-000, with privilege to the plaintiff to retain the use of the*
In the third paragraph of answer, also addressed to the first and third paragraphs of the complaint, the defendant alleged, in effect, that it was agreed between the plaintiff and the defendant that the latter’s employment under said appointment of January 30th, 1882, should be cancelled and no longer binding on either of the parties thereto; that afterward the plaintiff and the defendant made a parol agreement stated, being the same as alleged in the. second paragraph of answer, and that the plaintiff executed a written memorandum, made an exhibit, being the written offer to sell to Johnson set forth in said second paragraph; that the defendant made the sale to Johnson, under the agreement last mentioned, and fully accounted to her for the purchase-money to-be received by her, and paid the same to her and fully complied with the terms of said parol agreement; and the defendant denied having deceived or defrauded the plaintiff.
The plaintiff replied to the second and third paragraphs of answer, first by general denial, and second by alleging, in, substance, that no change was made in the contract set forth in the complaint, as alleged in the answer, nor was his employment thereunder ever cancelled or withdrawn by her,, as alleged in the answer, though she urged and insisted that the defendant should sell for more than $14,000, if it could be done; that while matters were in this shape the defendant contracted and agreed on a sale of said farm with said Johnson, for more than $14,000, in this, that it was agreed! that in addition to said sum the plaintiff should have for said farm the right to use and occupy it until March, 1883, and should have all the fruits, all of a portion of the crops, and two-thirds of the remainder thereof for the year 1882, Johnson insisting, however, that he would pay all said sum of
A demurrer to the second paragraph of reply was overruled.
There was a trial by jury, the verdict being for the plaintiff, her damages being assessed at $1,050. A motion for a tew trial was made by the defendant, and was overruled, and judgment was rendered on the verdict.
The appellant’s counsel contend that while the second paragraph of the reply may be good as to the second paragraph of answer, it is not sufficient to meet all the material allegations of the third paragraph of answer; that it failed to deny the alleged abrogation of the original contract of January 30th, 1882, and failed to deny or refer to the “parol” contract set up in the third paragraph of answer, under which the defendant claimed therein to have made the sale; that the showing of fraud in the reply applies by express reference to the written contract of April, being said written offer to sell to Johnson. It is therefore insisted that the reply being bad as to one of the paragraphs of answer to which it was directed, it must be held bad on demurrer. But the reply is not susceptible of such construction. It was alleged therein that no change was ever made in the contract of January 30th, 1882, as alleged in said paragraphs of answer, and that the defendant’s employment by the plaintiff to sell said farm was, never cancelled or withdrawn by her as alleged in said paragraphs of answer; and the contract of April alleged in answer was not shown by either paragraph of the answer to be
Counsel have discussed certain instructions given to the jury, others-asked by the appellant and refused, and others ■asked by him and given with modifications.
We do not find it necessary to take space to set out these Instructions. The objections of counsel to the action of the '■court may be disposed of by saying: First. That if instructions given to the jury, taken as a whole, express the law ap> plicable to the case, without material contradiction, the judgment will not be reversed because some one instruction, if ■considered by itself, might be capable of an application which would ignore a material question involved in the issues. Second. That an appellant can not complain of an inconsistency in the instructions to the jury caused by the giving of instructions asked by himself, which present a theory different from that contained in other instructions given which correctly state the law, he, in such case, being himself responsible for the inconsistency. Third. That, looking to the terms ■of the written appointment of Januai’y 30th, 1882, if the defendant, acting under said appointment as the plaintiff’s agent, received from Johnson an offer for the farm more advantage■ous to the plaintiff than that which the defendant- was authorized by that appointment to accept, it was his duty to ■communicate such offer to the plaintiff, and not to purposely ■conceal it from her; and if, so acting as her agent, he effected a better trade than that which he was authorized by said ap
There were some contradictions in the evidence, but taking it as a whole, it is difficult to see how the jury could have found otherwise than for the plaintiff. Even the testimony •of the defendant himself showed double-dealing and the deceitful concealment from his principal of facts which common honesty required him to disclose to her. Manifestly, the verdict was based upon such a view of the evidence that •errors in instructions, if there were such, would not justify us in disturbing the result reached.
Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment be affirmed, at the appellant’s costs.