198 P. 842 | Cal. Ct. App. | 1921
The plaintiff brought this action to recover the sum of $1,250, alleged to be due as a commission for effecting an exchange of real estate. The trial court held that the transaction was so tainted with fraud on the part of the plaintiff as to preclude a recovery, and gave judgment for the defendant. The plaintiff appeals.
[1] The appellant rested his right to recover upon certain writings signed and approved by the respondent. The respondent asserted that the agreements produced by appellant did not show the true contract, but had been fraudulently altered in material respects by the appellant after execution. During the course of the trial the court admitted, over the objection of appellant, evidence of verbal negotiations between the parties, for the purpose of ascertaining just what the parties had agreed to, and what was the real nature of the transaction between them. The evidence was properly admitted. In case of fraud no mere form of words of which the parties have made use can shut out inquiry as to the real facts. (Brison v. Brison,
[2] There is other evidence of the dealings between appellant and respondent and of the details of the entire transaction. But we think we have recited enough to show the nature of the fraud and bad faith, and the element of concealment on the part of appellant which characterized his dealings with the respondent. In all cases it is permissible to prove fraud by circumstances. In aid of the direct facts proved, legitimate inferences are permitted to be indulged in to establish other facts not directly in evidence. (Maxson v. Llewelyn,
Appellant was undoubtedly endeavoring to act in the matter of the exchange of properties for both Lee and the respondent, without respondent's knowledge or consent. The lower court also found that during the course of his employment by respondent, and without his knowledge, the appellant entered into a secret agreement with the agents of Lee to pay them one-third of any commission he might receive for making the exchange. He was not a mere middleman whose duty was ended when he brought appellant and respondent together. He was acting in a supposed confidential, advisory capacity for the respondent, who relied upon his advice and assistance. For these reasons, also, he was not entitled to recover in this action. (Clark v. Allen,
The judgment is affirmed.
Kerrigan, J., and Richards, J., concurred.