Fox v. Patterson
43 App. D.C. 484
D.C. Cir.
1915
Check Treatment
Mr. Justice Robb

delivered the opinion of the Court:

It is first objected that the court erred in permitting the appellee to amend her bill and the appellant to make answer thereto, and at the same time denying to appellant the right to make further proof. In her original bill Mrs. Patterson averred that Fox had been guilty of deceit as her agent, and the evidence tended to support the averment. The evidence that Fox was interested in the California was not inconsistent with the averments of the bill, but rather tended to support term. This evidence was met, so far as it was possible to be met, by Fox, and the case was fully argued before the trial court without a suggestion by him, so far as this record discloses, that more time should be given within which to take further testimony. The first objection to the complaint came after the announcement of an adverse decision. That it was within the discretion of the court then to grant leave to amend is beyond question. Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396, 35 L. ed. 1055, 12 Sup. Ct. Rep. 188; Morrow Shoe Mfg. Co. v. New England Shoe Co. 24 L.R.A. 417, 6 C. C. A. 508, 18 U. S. App. 256, 57 Fed. 685, 692. The amendment conformed to the case made by the evidence, and could not have been included in the original bill because the facts averred in the amendment, while known to Fox, were not known to Mrs. Patterson when the original bill was filed. This circumstance constituted an additional ground for al*492lowing the amendment. Anthony v. Campbell, 50 C. C. A. 195, 112 Fed. 212; Hobson v. Hobson, 105 Va. 394, 53 S. E. 964. While in allowing an amendment the rights of a defendant should be carefully safeguarded, there is nothing in the present case even tending to show that Mr. Fox suffered any injustice because no further testimony was taken. In his answer to the amendment he avers that he did not have any pecuniary interest in the California “adverse to plaintiff;” that he was not aware of the Abert contract, “though necessarily some contract was required in order to bind said Warren and procure said apartment house for plaintiff as contemplated by said exchange.” While he excepted to the action of the court in allowing the amendment and in confining him to the matters then in evidence, he nowhere suggested that he had any further evidence to offer. In other words, his objection to the amendment was purely technical, and, we think, wholly without merit.

It is next contended that the so-called fifteen months agreement amounted to a compromise and adjustment of all matters in dispute between Mr. Fox and Mrs. Patterson. To this contention there are two sufficient answers: First, the agreement itself and the testimony relating thereto negative appellant’s contention; and, second, it°was entered into by Mrs. Patterson without knowledge of the very material fact that her agent was financially interested in the property for which he induced her to trade. Foreclosure proceedings were imminent, and under this agreement, as previously stated, Mr. Fox was to manage the California for fifteen months. Such was the scope and purpose of the agreement. Both Mr. Ilardcastle and Mr. Slater, the attorneys .who were acting for Mrs. Patterson, testified that it was stated to Mr. Fox that the sole object of the agreement was to avert foreclosure proceedings, and that the agreement “was not intended to affect any rights which Mrs. Patterson might have or he (Fox) might have in the future in reference to the exchange of Mrs. Patterson’s properties for the California.” It was a very natural agreement for Fox to make, for under it he retained control of the California, and *493tlie status quo was maintained, for the time being at least. A compromise entered into by one party in ignorance of material facts suppressed by the other party is not voluntary, and will not be enforced . Wheeler v. Smith, 9 How. 82, 13 L. ed. 55; Cammack v. Lewis, 15 Wall. 643, 21 L. ed. 244. So we rule that this fifteen months agreement was not understood or treated by the parties as a compromise, and that, even if it had been, it would not have been binding upon the appellee, for the reasons stated.

That the court below was justified in setting aside the contract of exchange there can be no doubt. Mr. Fox was and had been for some time the agent of Mrs. Patterson. The record shows that he possessed her confidence to a marked degree. She was relying upon him to represent her interests, and hers alone, and she had a right to assume that he would do so. He grossly betrayed his trust, and led her into a disastrous venture. Instead of serving her, as in duty and justice he was bound to do, he was serving himself. When she and her daughter wrent to his office, neither Mr. Warren nor Mr. Abert was the owner of the California. An enforceable contract of purchase had been executed and a payment of $500 made thereon, under which Early & Lampion and Fox were to become the real owners. Instead, therefore, of Mr. Fox being in a position to act solely in the interest of Mrs. Patterson, he had secretly assumed a position antagonistic to her. Such conduct cannot be too strongly condemned, and where it has occurred the principal may repudiate the entire transaction and enforce reparation for losses sustained. Dahlgren v. Story, 39 App. D. C. 29; Forrest v. Wardman, 40 App. D. C. 520.

It is objected that the court’s valuation of Mrs. Patterson’s properties wrongfully converted by Mr. Fox is too high. The court fixed the value of these properties at $44,350, making their net value $26,350. Tn reaching this estimate the court fixed the gross value of the Sunderland place house at $8,000, whereas Fox and Early & Lampton were allowed $12,500 for it in their deal with Warren. The court, after a careful consideration of the evidence, fixed the value of the other prop*494erties, and, without discussing that evidence, we conclude that the valuation was reasonable and conservative.

Having disposed of all questions necessary to be considered, we affirm the decree, with costs. Affirmed.