163 P. 1097 | Utah | 1917
In view of the great length of the pleadings in this ease, covering, as they do 58 pages of the printed abstract, we shall not attempt to set them forth, not even in condensed form. We shall, however, attempt to state the facts so as to make clear the points decided.
The case, as originally commenced, was an action at law and was commenced by the plaintiff, McC'ornick & Co., Bankers, against the National Copper Bank of Salt Lake City to recover judgment upon an indorsement of a certain check, which indorsement was guaranteed by the National Copper Bank of Salt Lake City, and which McCorniek & Co., Bankers, claimed was a forged indorsement. The other defendants were brought into the case after it was pending.
The United Home Builders Company, a corporation, hereinafter called company, filed an answer and cross-complaint in which it sought equitable relief against its co-defendants, the Bowrings and Best. The Bowrings and Best also filed answers and cross-complaints in which they set forth purely equitable matters, that is, the Bowrings alleged that they were induced to sign certain papers, including the indorsement on the check in question, by misrepresentation and fraud practiced by one L. B. Call, who was a representative of said company; and Best alleged that said company, through said Call, had, through fraud, and misrepresentation, obtained certain moneys from him and was withholding the same.
The Bowrings and Best alone appeal. The questions involved on this appeal arise entirely out of the matters set forth in the equitable cross-complaints aforesaid. The two banks between whom the action originated have no interest in this appeal and will not be further mentioned, except in connection with some of the transactions which are set forth in the cross-complaints and are involved on this appeal.
There is really not much controversy concerning the facts which arise upon the cross-complaints and which must control this appeal. Briefly stated, the facts are: ' That in the latter part of April, 1915, the appellant Best was the owner
After a somewhat protracted hearing the court found against the contentions of the Bowrings. The court, however, found that the company was owing Best, out of the moneys obtained from the loan as aforesaid, the sum of $291.30, with interest, and judgment was entered in his favor for $328.74, including interest. The court also found that the Bowrings were not injured or defrauded in any way, although they had been deceived, and disallowed their claims. The court also required the company to make and deliver to the Bowrings “a good and sufficient bond protecting them, and each of them, against any personal judgment to be at any time rendered upon the foreclosure of said mortgage for $1,000.”
The Bowrings and Best alone appeal from the judgment, and they assail many, if not all, of the court’s findings of fact as well as some of the conclusions of law and the judgment.
During the trial Wicks was also made a party defendant, and he assigns cross-errors, which will be referred to later.
The company is the only party that opposes the appeal, and its counsel] with much vigor, contend that there is no merit in appellants’ assignments of error. As we view the matter, the case really presents no great difficulty. While we fully agree with the trial court that, although the Bowrings,
As we have seen, the company obtained $970.30 upon the note and mortgage, the whole of which sum, both in law and equity, always belonged to Best. It is his property that is pledged to secure the payment of Wicks’ mortgage. Best has, however, received and retained $462 of the amount of the loan. The balance of $508.30 is thus due him, all of which, the undisputed facts show, the company received. The court in its findings and judgment required the company to account for all of that sum except the sum of $225 which the court (including a few small items for costs) allowed the company as a commission. We remark that nothing is contained in the pleadings about a commission, except that in the company’s cross-complaint it is alleged that it was understood between the Bowrings and Call that the amount obtained from Wicks upon the loan in excess of $500, which was to be paid to Best, should be retained by Call or the company. 'In the prayer of the cross-complaint, however, the company only prays for general relief, and the proof is that Best did not agree that Call or the company might retain said amount, or any amount, as a commission. Indeed, Call himself admitted that Best never agreed to pay any stated sum as a commission. The only competent evidence in the record respecting commission was produced by Best himself. It seems that upon that evidence the court allowed the company the sum of $225 as a commission for Call’s services in bringing about the exchange of the two properties. As a matter of course Call had no claim for any other services, since he was not employed or authorized to . render any other. Best, however, produced competent evidence that a fair and reasonable commission under all the circumstances was the sum of $150. We, too, think that $150 is a fair commission, notwithstanding the company’s claim that it should retain the full amount of the loan, except the $500 to be paid to Best. If that were allowed, then the commission would be approximately sixteen per cent, of the whole amount involved in the deal. To illustrate: Suppose the Bowrings had sold their dwelling for $3,000, its alleged value, and had paid Best that sum for his
In order to avoid misconception, we desire to state that we have allowed the $150 commission to the company in this case for the reason that Best has in effect offered that sum as and for a commission. We do not pass upon the question of whether, under all the circumstances, the company would or would not be entitled to demand a commission in view of Call’s conduct. That question, in view that Best practically conceded that $150 was a fair and reasonable commission, is not involved here, and hence is not decided.
The findings of the court, conclusions of law and judgment are therefore modified to the extent herein stated, and as to all other matters not so modified the findings, conclusions of law and judgment are affirmed. The case is therefore remanded to the district court of Salt Lake county, with directions to modify the findings of fact, conclusions of law and judgment as against the company and in favor of Best, as