165 Iowa 221 | Iowa | 1914
Mary E. Mclntire, in her lifetime, owned three hundred and twenty acres of land in Harrison county, and upon her demise title passed to the executors of her estate, Fred H. Haskell and Carrie R. Hempstead. The latter resided at Mendota, 111., and the former had moved from that place to California. N. J. Demerath, their attorney, lived at Kewanee, 111., and during the time in question attended to the business of the estate, being interested as one-fourth owner under the will if his deceased wife.
Fred Brown & Co., a copartnership, composed of Fred Brown and M. J. Fitzgibbons, were engaged in the real estate business at Missouri Valley, and had attended to the renting and care of the land for many yeárs. James M. Cash was engaged in the real estate business at Iowa City, and seems to have had certain property in Davenport belonging to- Dr. Atkinson, listed with him for exchange. His brother, Thomas Cash, resided at Missouri Valley. In the latter joart of November or fore part of December, 1912, an exchange of. the farm at the estimated value of $125.per acre for the property in Davenport at the estimated value of $27,000 was effected; Atkinson taking the land subject to a $9,500 mortgage, and paying $3,000 difference. Later James M. Cash sold the Davenport property for $14,000, and, as the farm was purchased for $17,000, this left a net profit, after deducting all incidental expenses, of $9,363.10. The plaintiffs claim that
The evidence leaves no doubt but that plaintiffs had been interveners’ agent to rent and care for the land for many years. It is equally conclusive that they became agents for the sale of the land during 1912. Demerath testified that he talked to them about the sale of the land, and in June, 1910, wrote Fred Brown & Co.: “We are offering the land for sale, and the others feel that it should be disposed of some time during the present summer. Will you kindly give this matter your attention, and see what is the best price you can secure for the same?” To this, Brown & Co. responded, on June 23d: “If you have a price on the farm, you may inform us what it is, and we will do our best to make a sale for you;
This correspondence is the best answer to plaintiff’s contention that the firm was not acting as agent for the sale of the land. Moreover, the correspondence which follows shows very clearly that plaintiffs understood they were so acting, and misrepresenting the facts, and concealing the truth from Demerath, even if it were conceded that Fitzgibbons spoke to Demerath at one time of buying the land himself, for on. Oe
In reply to your letters of recent date, will say that I have the proposition changed this much for you, and would advise you to take it. I have an offer of immediate settlement on your half section; $6,000 cash, $10,000 five years, optional, at 6 per cent., money and mortgage to be turned over to you at once. The party agrees toxpay me $1 an aere 'commission, so this would make net $16,000 to the heirs of the Melntire estate. Now, Mr. Demerath, I think that the experience I have had in handling this farm that the interest on $10,000 at 6 per cent, would pay a great deal bigger dividend than the entire farm is paying you at the present time,
As Brown and Thomas Cash well knew, the purchasers had no notion of cultivating the same.
Demerath responded, saying that it was not likely the executrix would accept the offer: “I think, however, if your client will make the amount $17,000 net, with $7,000 in cash, and the $10,000, on the same terms, as the original offer, that I can persuade her to take it. If you will take the matter up right away, and will let me hear from you, I will do what I can to close the deal.” Brown telegraphed Demerath on the 16th of October: “Seventeen thousand net; seven thousand cash; ten thousand five years, optional six per cent, papers.” Demerath responded by saying he would take the matter up at once, requesting a blank mortgage, and inquired as to the name of Mrs. Cash, and said the deed would have to be sent to California for Haskell’s signature. In response to this, Brown wrote on October 19th: “You are safe in going ahead and closing the deal, as I have given Mr. Cash a contract, and taken some money from him as down payment on the one-half section. I met Mr. Cash this morning before getting your letter, and I told him that I thought everything would be all right, and that we could have the papers around in ten days
Negotiations had been proceeding between Dr. Atkinson and James M. Cash, and finally they entered into a contract whereby Cash undertook to convey the land on terms herein-before stated in exchange for the latter’s Davenport property. Demerath forwarded a deed of the land to a bank in Missouri Valley running to Thomas Cash, and the exchange was effected by negotiating a loan on the property received from Atkinson, not only without advancing any money, but with a balance of about $2,500 remaining on hand. Further details of the transaction are unnecessary. The defendant received the entire profits, and refused to divide. The evidence that plaintiffs concealed from Demerath that they were participating in the purchase from the executors was undisputed, and so, too, is it undisputed that Thomas Cash, who, according to defendant’s testimony, represented him, was aware of the correspondence, and of the tactics practiced on the representatives of the executors in acquiring title in Cash’s name.
But the interveners assert no claim against defendant other than the amount which defendant had agreed to pay the plaintiffs, and against plaintiffs for the difference between the value of the land and the price for which sold. As the price equaled its value, no recovery may be had against plaintiffs, and defendant was to turn over to plaintiffs one-third of the profits only. Judgment should have been entered against defendant on the petition of intervention for $3,131.03, with interest from April 3,1911. Upon remand, the interveners may, if they so elect, amend the petition of intervention in conformity with the facts, and, unless it shall be made to appear otherwise, enter judgment for the full amount of the profits in defendant’s hands, with interest.
IV. It is argued by appellees that interveners are acting solely for the benefit of the defendant. The evidence does not warrant this conclusion. It is true that counsel for defendant, after his employment, interviewed Demerath, and arranged to file the petition of intervention; but the evidence fails to disclose that such intervention was not in good faith, and for the purpose of recovering a claim justly owing the interveners, though counsel may not have rightly measured the extent of defendant’s liability. The theory of the defense was that in any event defendant had at least $2,200 he had obligated him