121 Va. 399 | Va. Ct. App. | 1917
after making the foregoing statement, delivered the opinion of the court.
The assignments of error and cross-error before us raise the questions for our decision which will be disposed of in their order as stated below.
1. What was a reasonable compensation to appellant for his services in making the sale of timber in controversy in this causej
We think the finding of the commissioner iu favor of appellant on this question, above stated — of 10 per cent, of the share of appéllees in the purchase money for said timber — allows the former a reasonable compensation for his services aforesaid, for the reason stated by the commis
2. What was a reasonable compensation to appellant for the value of the right of way over the forty-six-acre tract which is alleged to have entered into the price obtained for the timber aforesaid?
We think the finding of the commissioner on this question, above quoted, of $1,000.00, is reasonable, fair and just to all parties, for the reasons given by the commissioner, also quoted above, further developed below. We think the proper measure of compensation for the right of way was the price therefor at which appellant, under the circumstances, could reasonably have expected to sell it, in connection with the sale of his interest and the other interests which he was authorized to sell in the Sayers estate timber and in connection also with the sale of the timber on his forty-six-acre tract of land. Measured in that way we
3. At what value did the claim of appellant that he owned a one-seventh undivided interest in certain land acquired by him under the will of his grandfather, Kiah Harman, deceased, enter into the sale of timber in question ?
It is true the burden was upon the appellant to show by a.preponderance of evidence that said cloud upon the title to the timber had some definite value, so as to enable the commissioner and court to determine upon the value of it. The proof furnished by appellant on this subject consisted of the testimony of Judge Strother, counsel for the Ritter Lumber Company, as aforesaid, taken by said commissioner. He testified positively that in the early part of 1909 his said company had an option from appellant to purchase the said claim of title, constituting said cloud upon said title, at the price of $1,000.00 and that such company was then willing to pay that sum for it, in order to extinguish it, had it then been able to make the purchase of timber aforesaid which it afterwards made; but that when the option agreement of November 10, 1909, was made, which covered the aforesaid sale of timber afterwards consummated, the $1,000.00 option above referred to had expired and appellant then asked $2,000.00 to extinguish such cloud upon the title. Judge Strother testified that his company was not willing to pay $2,000.00 to extinguish such cloud on the title. He adds, in answer to another question, “I don’t recall at this time whether at that time,” (November 1909) “we made him an offer of $1,000.00 or not, but I am under the impression we were willing to carry out the original agreement with reference to that interest, and when Mr. Harman raised the price to $2,000.00, we declined to
4. Should appellant have been denied all compensation for his services in making sale of said timber?
Appellees on cross-assignment of error make this claim, under the well settled rule that a broker or agent guilty of bad faith to his principal forfeits all commissions or compensation for his services.
As we have above seen, this case does not fall within the class of cases relied on by appellant. Under appellant’s bona fide construction of the contract with appellees, under which he made the sale of timber in question, he believed that he occupied the relation of an optionee purchaser and had the right to resell the timber and retain all of the purchase money over and above $10.00 per acre for the timber. In view of this situation and of the further fact that the vendee had an interest not to have the records disclose the true consideration for the purchase of the timber-and other subjects of said sale, the conclusion that appellant was guilty of fraud and deception towards appellees does not follow from the fact that the papers recorded in connection therewith did not disclose the true consideration for such sales. Even with respect to the fact that appellant induced appellees to unite in the deed to said vendee by t]ie representations that appellant sold the timber for $10.00 per acre and that that was the best price he could get for it and was the amount'that he and his wife were to receive, while not a frank statement and not to be
Moreover, the bill in this cause did not make any issue that appellant was not entitled to any commissions or compensation for his services aforesaid. On the contrary the bill expressly stated that appellant was entitled to “reasonable commissions.” The issue that appellant should be denied all compensation for his services not having been made in the pleadings or in the court below, it cannot be made by assignment of error in this court.
5. Should the costs of the reference to the commissioner in the court below have been decreed against the appellant?
In view of the respective contentions of the parties before the commissioner, we are of the opinion that the ap
For the foregoing reasons we are of opinion to amend and correct the decree complained of on the subject of the disallowance to appellant of the $1,000.00 for his claim of title aforesaid derived from his grandfather and the consequential allowance of $100.00 to appellant on commissions more than was allowed by the report of said commissioner; and with these corrections and amendments such decree will be affirmed, with costs against the appellees.
Amended and affirmed.