137 Mo. App. 12 | Mo. Ct. App. | 1909
— This is a suit for damages alleged to have been sustained by plaintiff from the fraud and deceit of defendant jtracticed during the existence of a confidential relation between the parties.
Defendant denies in his answer that he acted with reference to the subject of the controversy as the fiduciary of plaintiff and alleges that the money obtained, which plaintiff now seeks to recover, was paid him as a commission for services he rendered as agent for the owner of land purchased by plaintiff. In other words,
The most important question for our solution (raised by the demurrer .to the. evidence) is whether or not the evidence most favorable to plaintiff tends to show that defendant, while acting as the fiduciary of plaintiff, abused his trust to his own advantage and to the damage of plaintiff. Material facts adduced by plaintiff are as follows: The parties both lived in Carrollton and had been acquainted intimately for about fifteen years. Plaintiff was a clerk in a bank and had some money; defendant was a merchant. In the latter part of the year 1905, defendant made several trips to Texas and bought three sections of land there. He was contemplating another visit to that State when he met plaintiff and engaged in conversation with him, the substance of which thus is stated by plaintiff:
“I met Mr. Clark in the court house down in the basement here one day, and he got to talking about his Texas lands down there and I asked him about them. He had been buying some lands and I asked him about the country, what he thought about it. He was telling what a good country it was and what a good soil it had there and what he thought about the chance of investment, and he remarked to me at the time that he would like for me to go down there with him sometime, and I asked him when he was going down. He said he would go down on the next excursion, he thought, and would like for me to go with him. At that time I wasn’t in the bank and I could arrange to go very well and I told him I thought I would go with him and he told me he would give me any benefit or judgment he had on the land, quality and so on, and that he knew about the valuation of it and he would practically know just about what I was paying, what the land was worth, and he would give me the benefit of that knowledge that he had.” Pursuant to this
First, he says that he was not in a position that charged him with the performance of any fiduciary duty to plaintiff; that he was the agent of Webb, the vendor; that this fact was known to plaintiff and, therefore, that plaintiff knew and acted as though he knew that he must deal at arm’s length with defendant as well as with Webb, the vendor. Consequently, defendant assumes that he had a right to contract with his principal for an additional commission to be paid out of an advance in the price of the land bought by plaintiff and to keep knowledge of that fact from plaintiff, since the amount of his compensation and the manner of its payment concerned only him and his principal and were none of plaintiff’s business; second, he contends that the home section was actually worth more than plaintiff paid for
In this connection, complaint is made of the refusal of the trial court to permit defendant to introduce evidence to show that the value of the home section equaled and, in fact, exceeded the price plaintiff paid. We shall dispose of these propositions in the order of their statement. That defendant placed himself in a fiduciary relation to plaintiff is a fair and reasonable inference from all of the facts and circumstances in evidence in the voluminous record before us, many of which we have deemed it unnecessary to state. The parties were neighbors and close friends. Defendant had bought Texas lands and was familiar with their quality and values. Plaintiff had no knowledge of the subject. Certainly, defendant took pains to impress plaintiff with the conviction that he would give plaintiff the full benefit of his knowledge, judgment and friendship if plaintiff would join him in the purchase of a tract of land which was too large for him to purchase alone. He assured plaintiff, in effect, that he would make no profit at plaintiff’s expense and his offer to divide with plaintiff what he expected to receive from the Texas agents is a strong indication of such assurance. The fact that defendant was to receive a part of the agent’s commission by no means conclusively supports his contention that he was Webb’s and not plaintiff’s agent. It is compatible with the belief which, obviously, defendant sought) to inculcate in the mind of plaintiff that he stood in the, relation to Webb of a prospective buyer of the land and that the proposal by Webb’s agents to divide their commission was made to induce a sale to defendant and plaintiff, his associate. Such offers are common enough in real estate transactions. These considerations move us to say that in conducting negotiations with Webb
What we have said answers defendant’s second proposition. We are not dealing here with a question of' deceit practiced by a vendor on a vendee as was the case in Thompson v. Newell, 118 Mo. App., 405, greatly relied on by defendant, but with a question of deceit practiced by an agent on his principal. It is immaterial that the land bought by plaintiff was worth all he paid for it; he was entitled to fair treatment at the hands of his agent and a fall disclosure of all the terms of the agree'ment made for his benefit. It is elementary that an agent has no right to derive any secret profit or advan
Objections to the instructions have been sufficiently considered in what we have said. On the whole, we find the instructions „ placed a heavier burden on plaintiff than he was compelled by the law of the case to bear, but they are free from error prejudicial to defendant. As far as defendant is concerned, the case was fairly tried and, manifestly, the judgment is for the right party. Accordingly, it is affirmed.