33 Wis. 668 | Wis. | 1873
If this case were to be decided according to the principles of ethics and social duty, there would be little difficulty in saying what the judgment ought to be. For it seems to us very plain that even accepting the defendant’s own account of the manner in which the plaintiff was induced to purchase the land of Stonebraker, still the defendant, in leading him on in the negotiation, was greatly wanting in candor
But we confess that we can not accept the defendant’s account of the circumstances under which the purchase was made, as altogether reliable. On the contrary, while he states that he was not interested in the purchase in the first instance, but that the plaintiff subsequently sold him an interest in the subject matter of the contract previously made, we are quite well satisfied that he was interested as a joint purchaser from the beginning, and that it was so understood by all parties at the time. To our minds, this fact is abundantly established by the testimony, and the case will be disposed of upon this assumption. And here it may be observed, that in the written contract entered into on the 29th of May, 1868; between Stone-braker of the first part, and the parties to this suit of the second part, the defendant appears as a joint purchaser of a one-fourth interest in the land, while the plaintiff is the purchaser of the other three-fourths; and we are satisfied from this and the' other testimony bearing upon the point, that it was understood from the commencement of the negotiations which resulted in this agreement, that he was to hold this relation. The truth then
When the case of Hardy v. Stonebraker, 31 Wis., 640, was before this court, which was an action by the present defendant to recover the commissions which the vendor had agreed to pay, it was thought that so far as that suit was concerned, it did not lie in the mouth of the vendor to say that a fraud had been practiced upon the plaintiff in inducing him to make the purchase, and that this constituted no defense in that action. For the agreement to pay the commission on the part of the vendor was a lawful contract, and was distinct from that purchase. We could not, therefore, see how it could be affected by the alleged fraud subsequently practiced upon the plaintiff. The validity of the agreement to pay the commission was the only question involved, and was really the only point which was properly raised upon the record. But since that case was decided, we have had occasion to consider the question, whether, when a broker merely engages to find a purchaser at such a price as may be agreed upon, and becomes the purchaser himself — the vendor, with full knowledge of his character treating with him as a purchaser and a sale being consummated — whether, upon these facts, the commissions can be recovered. And it was held that there was nothing in the policy of the law which would forbid a recovery in such case, and that the action could
The case before us presents another question, and calls for the application of a somewhat different principle. It would seem to be governed by the doctrine recognized and enforced by the authorities, and generally stated as follows: “ Wherever parties stand in such a relation, that, while it continues, confi-' dence is necessarily reposed by the. one, and the influence which naturally grows out of the confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, the person so availing himself of his position will not be permitted to retain the advantage, although the transaction could not be impeached if no such confidential relation had subsisted.” Kerr on F. & M., 150; 1 Story’s Eq. Jur., § 323; Willard’s Eq. Jur;, 169 ; and Tate v. Williamson, L. R., 2 Ch. App., 61.
It has already been remarked, that by the written contract, the plaintiff and defendant became joint purchasers of the real estate therein described, in certain proportions. The contract itself, and the other evidence, show the object the parties had in view in buying this property. The purchase was “ for the purpose of operating or digging for lead ore in and, upon said land, and to work and mine the same ; ” and it was stipulated that the vendees should have immediate possession to prosecute this work. And it also appears that, in accordance with this original purpose in making the purchase, the vendees did in fact, in the following August, commence their mining operations, and spent considerable money in running a level to drain the tract of land, each party paying his share of the expense. This constituted a partnership so far as the mining operations were concerned ; and the facts show that the land was negotiated for and obtained for this contemplated partnership ad ventura The defendant, then, while holding this relation to the plaintiff, and while engaged in negotiating for the property for this joint speculation and partnership enterprise, had a private understanding with the vendor to ask $8,000 for it, in order that the plaintiff should pay for his interest all that the entire estate was worth, and the defendant thus get his interest for his commissions. And it is admitted that, for the purpose of deceiving the plaintiff as to the real character of the transaction, the arrangement between the vendor and defendant was,
The court below, however, did not hold that a fiduciary relation subsisted between the plaintiff and defendant because they were partners at the time of the purchase, or because the property was purchased for a partnership adventure, but that it would be sufficient to constitute such a relation' if the purchase was a joint one, each purchaser becoming responsible for the entire purchase money. In such a case the court thought the same good faith should be observed between the purchasers as in the case of a partnership, because of this relation of prin-pal and surety. That the court was correct in its construction of the written contract is plain. Each vendee was liable to the vendor for the whole purchase money, and he had no right to demand a conveyance from Stonebraker of his interest until it was paid. When the consideration money was paid, then the vendor undertook and agreed to convey the undivided three-fourths to the plaintiff, and the undivided one-fourth to the defendant. The contract thus created the relation of principal and surety, rendering each responsible for the payment of the other’s share of the purchase money. Now the authorities hold that “ the principles which govern the case of dealings of
We are of the opinion that the judgment of the circuit court ■is correct and must be affirmed.
By the Court. — Judgment affirmed.