76 P. 486 | Cal. | 1904
Action to set aside a deed. Judgment was rendered in favor of the plaintiff's, and from this judgment and an order denying a new trial the defendant has appealed.
The plaintiffs employed Frederic Garnier to negotiate for them with Josephine Beyersdorff, who was the owner of a *640 certain lot of land in San Francisco, for its purchase. As a result of his negotiations he obtained her offer to sell the same for the sum of $11,500. The plaintiffs were at that time the owners of another lot of land in San Francisco of the value of $1,150. After Garnier had received this offer he represented to the plaintiffs that Mrs. Beyersdorff would sell the land to them for $11,500 and the lot of land owned by them, and would not sell it for any less amount. The plaintiffs believed this representation, and on January 2, 1901, purchased the land, and paid therefor the sum of $11,500 in money, and also executed a conveyance of the lot of land owned by them. This representation of Garnier was in fact false. Mrs. Beyersdorff had agreed with him to accept the sum of $11,500 in money for her property, and did not in fact at any time demand in addition thereto a conveyance of the plaintiffs' lot of land, nor was anything said by her as to conveying the plaintiffs' lot as a part of the purchase price. All that she received for her land was the sum of $11,500.
When the parties came to close up the transaction Garnier had plaintiffs go with him to the office of Mr. Brownstone, who acted as agent for Mrs. Beyersdorff, and while there presented an instrument to them which he requested them to sign, and which was in fact a conveyance of their lot to himself. They did not read the instrument, but Garnier represented to them that it was a conveyance of their lot to Mrs. Beyersdorff as a part of the consideration for her property, and stated that after they had executed this deed to her they would go and pay to Mrs. Beyersdorff the $11,500 and get her deed to the other lot. They thereupon signed and acknowledged this deed, and left it with the notary; and then the plaintiffs and Garnier went to the office of Mr. Comte, where Mrs. Beyersdorff was waiting to complete the transaction, and paid her the $11,500 and received the conveyance of her lot. Garnier did not have the deed to himself recorded until April 4, 1901, and until that time the plaintiffs believed that the instrument executed by them was a conveyance of their lot to Mrs. Beyersdorff as a part of the purchase price for her lot. Immediately upon learning this fact they brought the present action to set aside their deed to him and have the same annulled. After the action was at issue, and before it came on for trial, Garnier died, and his *641 administratrix was substituted as the defendant herein in his place and stead.
The relation between Garnier and the plaintiffs was of a fiduciary nature, and not only imposed upon Garnier the duty of acting in the highest good faith towards the plaintiffs, but precluded him from obtaining any advantage over them in any transaction had by virtue of his agency. Subdivision 3 of section
The suppression by Garnier of the fact that Mrs. Beyersdorff was willing to sell her property for $11,500 was a violation of his duty to the plaintiffs, and his statement to them that in addition thereto she demanded a conveyance of the land described in the complaint, as well as his further representation to them that the instrument which he induced them to execute was a conveyance to Mrs. Beyersdorff as a part of the consideration for their purchase from her, was a fraud upon them for which they were entitled to hold him responsible. As he procured the conveyance to himself of the land set forth in the complaint by virtue of this fraud, the plaintiffs are entitled to have the instrument set aside as void and declared to be of no effect.
The proposition of the appellant, that inasmuch as the contents of the instrument were open to the plaintiffs equally as to Garnier, and that as they signed it without reading it or having it read to them, they are bound by its terms, is without merit. The case of Hawkins v. Hawkins,
The further proposition, that inasmuch as the plaintiffs were willing to give their land as well as the money for the lot purchased from Mrs. Beyersdorff they have sustained no injury, and therefore have no right of action against their agent, is equally without merit. An agent will not be permitted to justify the violation of his trust and retain from his principal the fruits of his fraud upon the plea that the principal was willing to give a greater price for the property rather than not to obtain it. In King v. Wise,
The court properly overruled the objections of the defendant to the competency of the plaintiffs as witnesses. Subdivision 3 of section 1880 of the Code of Civil Procedure, has no application to a case like the present. (Myer v. Reinstein,
We advise that the judgment and order appealed from be affirmed.
Chipman, C., and Smith, C., concurred.
For the reasons given in the foregoing opinion the judgment and order appealed from are affirmed.
Angellotti, J., Shaw, J., Van Dyke, J.