17 Mo. App. 382 | Mo. Ct. App. | 1885
Opinion by
This is an action to recover damages from defendant for failure to comply with contract of sale of land, being all of the west part of lot No. 8 in block No. 55 in the town of Cameron.
The suit is based on the following written paper, which was introduced in evidence by plaintiff as the foundation of his claim:
*385 “Cameron, Mo., Feb. 23d, 1882.
“Received of H. S. Beery, the sum of one hundred dollars in part payment of the west part of lot 8 in block 55, including all that'part of said lot west and adjoining the brick building now occupied by Hamer & Shean, druggists, which is situated on the east side of the said lot 8 in block 55 — total purchase price being $1,500, fifteen hundred dollars.
William Hollington.”
It appears from the testimony that the defendant was the owner of the- property and desired to sell it to a man living at Kidder who was intending to erect a brick business house thereon; (whether he would sell, or wanted to sell to any one else is a question not agreed in the evidence). He employed, as he states, one H. S. Beery, as his agent to make the sale, authorizing him to sell it for $1,500.00. Beery claims that his employment to sell as agent of defendant was general, and not confined to the “Kidder man.” Beery himself, who was introduced by plaintiff, testified :
“I live in Cameron, Mo. I am a real estate agent there. I was employed by Hollington to sell a lot; the west part of lot 8 in Cameron; I believe it is in block 55.”
“ Defendant signed this paper — this name at the bottom is his signature.” •
“I made the sale to Doc. DeSteiger as Hollington’s agent. It was my money I paid. DeSteiger said he would take the property, but had gone away; so I paid one hundred dollars to Hollington at the time I took the the receipt. I had instructions from plaintiff to buy at $1,500. About two days after the sale I presented to Hollington .$1400, for the balance of the price of the property. He refused to take it; said the property was his wife’s property. Said he would make a quit claim deed to the property. Hollington knew I was buying for some one else, and not for myself. Don’t think he knew who I was buying for. The contract would have been*386 different if I had not been going away from ’own before the bank opened; that is, I would have taken the receipt in the name of HeSteiger. Plaintiff furnished me the '$1400 I offered the defendant. I am acquainted with the property; it is worth $1800 to $2000.”
All of the foregoing testimony of the witness was objected to by the defendant but the court overruled the defendant’s objections, and admitted the testimony against said objections. To which ruling of the court the defendant then and there excepted at the time.
On cross-examination, the witness testified as follows :
“I don’t know what I told Hollington about $1500 being more than the property was worth; probably told him that was more than it was worth. I was interested in getting it for sale at a low figure so I could make sale of it. Hollington tendered back to me the $100 I paid him. I regarded the property cheap' at $1500. Hoilington gave it to me to sell a week or ten days before it was sold. I was about to effect a sale of the whole property to a Kidder man. At the time of the trade I intended the property for the plaintiff. The agreement was written by James McCray, my partner. He was present when it was signed. At the time he gave the property to me to sell, there was a frame building on it. It was reserved in the sale. It was to be moved off. Hollington said nothing about reserving a stairway. At the time of the s lie it was understood that defendant was to have the building. Without the building the property was worth $1800 or more. Hollington did not to my recollection place any restrictions on me as to who I would sell the property to. ”
James McCray, being produced, sworn and examined on the part of the plaintiff, testified as follows: ‘£ I wrote the agreement, and I was present when the defendant signed it. At the time Hollington gave the land to us to sell there was a frame building on it. At the time of the sale I think the property was worth $1800.”
Cross-examined. — “I think when Hollington came over to our office a day or two after the sale, he objected to
The following instruction, No. 8, was offered by defendant and refused by the court, and duly excepted to:
8. “Under the law, H. S. Beery could not act as agent for both defendant and plaintiff at the same time without the consent of both parties, and neither the receipt or writing in evidence, nor any understanding or agreement at the time of signing the same will be binding as between defendant and plaintiff, unless the jury find from the evidence that the defendant had at the time full knowledge that said Beery was acting for and in the interest of the plaintiff.”
The $100.00 paid at the time of signing the receipt was returned to plaintiff at the trial.
There are a great many exceptions by defendant in the course of the trial, as to the proper evidence in the cause, none of which we deem to be well founded. The contract is sufficiently stated in the writing to take the case out of the statute of frauds. There is authority holding sufficient, paper with much less in it than this one. — Willey v. Roberts, 27 Mo. 388 and 31 Mo. 212; Moore v. Mountcastle, 61 Mo. 424; Brigg v. Muncheon, 50 Mo. 407. The fact that the contract was made in the name of Beery would not prevent it being shown, that it was as the agent of De Steiger, nor prevent his recovering thereon in his own name.
We are of the opinion, however, that the 8th instruction offered by defendant should have been given. There was evidence tending to show that in making the purchase, Beery was acting as agent for plaintiff; and, indeed, plaintiff’s whole theory of right to recover on the writing is, that it was made in the name of his agent and for his benefit. The evidence of Beery, as we have quoted, shows that he was employed by defendant to sell the lot; that he sold it as defendant’s agent; that he sold it for $1500.00, when he knew at the time it was worth $1800.00 or $2000.00, and that at the same time he was telling defendant $1500.00 was more than it was worth. We then have Beery acting as agent for both parties, his conduct, in this particular,' giving evidence of the deep wisdom of the law in declaring such act fraudulent and of no effect. Agency or employment for two parties- in antagonistic interests, is not a worthy position to occupy. It is not possible for a man to serve two masters, with opposing interests,, honestly, at the same time;, the rights of one, or the other, or both, will necessarily suffer. The temptation for. wrong is too great for ordinary human nature. So jealous is the law as to the relation between principal and agent, that in passing on questions of this character, arising between them, the mere fact of the discovery of no actual fraud or bad faith, does not relieve the case in the least. ‘£ The cases are nearly if not quite uniform, where the double employment exists and is not known.
Defendant testifies that he let the agent have the property to sell to the “Kidder man” and that he supposed the sale was being made to him. His whole testimony rebuts the idea that he knew his agent had proven recreant to the trust reposed in him. It is not reasonable to suppose he would have given an attentive ear
Manifestly defendant should have the opportunity of testing these disputed questions before .a jury. If it should turn out to be a fact that Beery’s double capacity was unknown to defendant, it would be a fraud on him to permit the contract to be enforced by plaintiff; or that he should be permitted to recover damage on account of it.
the judgment is reversed and the cause remanded.