126 P. 20 | Or. | 1912
delivered the opinion of the court.
Of the $4,000 so paid by C. G. Benson and Dosch, $500 thereof was, by Fawk’s direction, paid to E. P. Mossmon and S. L. Young on account of commission for negotiating a sale of the land to Murtón. When such sale was effected, Mossmon was plaintiff’s partner in the real estate business, which firm thereafter continued and existed at the time of the trial herein.
In November, 1910, C. G. Benson and Dosch, having learned that the $4,000 which they gave was the only money actually paid on account of the purchase of the land, and that the plaintiff and Page, without paying any consideration therefor, had each obtained an undivided one-fourth interest in the premises equally with them, complained of such conduct to McNair, who, on December 5th of that year, admitted making the false representations hereinbefore mentioned, and agreed for himself and Page to pay the installment of $4,500 maturing January 1, 1911, and the further sum of $435 as interest thereon.
Pursuant to this understanding, the plaintiff paid to the Trust Company $2,500 for Fawk, and also left with it for him promissory notes for $1,435 and $1,000 respectively ; the latter note having been signed by Mossmon as a joint maker. Fawk accepted the money and notes in full settlement of the installment of the purchase price maturing January 1, 1911, and thereupon returned to Mossmon the note for $1,000, marked “Paid,” in satisfaction of the remainder of the commission due on account of negotiating a sale of the land to Murtón. As a part of this settlement, the plaintiff assigned to the defendant B. M. Benson, an attorney at law, 10 per cent of the profits expected to be realized from a sale of parts of his interest in the orchard tracts, in consideration for
Having learned that Fawk had received for his land in money, notes, mortgage, etc., only $17,000, instead of $18,500 as stated in the contract with Murton, and that he had paid $1,500 as commissions for negotiating the sale to Young and Mossmon, the latter being McNair's partner, B. M. Benson, on January 18, 1911, invited the plaintiff into his office, which he entered about 10 o’clock a. m. and found the other defendants assembled there. The door of the room was thereupon fastened by a spring lock, which did not permit an entry without turning the catch, but would not prevent an exit if the bolt were removed from the inside. McNair was directed to be seated, and informed that more of his fraud had been discovered, respecting the receipt of $1,500 from Fawk as commissions. He was told that, in order to liquidate the damages which the defendants had sustained by reason of his misrepresentations, it was necessary that he should immediately pay them $4,500 and transfer to them his remaining interest in the land, and that, unless he complied with their requests, an action would forthwith be commenced against him for his fraud, to recover the damages for which a complaint had already been prepared. He was further informed that if such action were instituted it would disgrace him and his family and ruin his business. The plaintiff asked permission to consult with a lawyer and also to visit his wife before acceding to their demands; but his requests were denied, and he was commanded then and there to settle their claim for damages. He was permitted to leave the office twice; but on each occasion was accompanied by one of the
During their settlements, the plaintiff offered to repay Dosch and C. G. Benson the sum which they had given on account of the purchase of the land and interest thereon; but they declined the proposal. After McNair had transferred three-fourths of his interest in the premises to L. and S. Friemen, B. M. Benson wrote them respecting the land, saying inter alia:
“This is a splendid investment nevertheless and an opportunity such as seldom presents itself.”
The trial court, referring to January 18, 1911, made a finding of fact as follows:
“That at the said time defendants had no plausible pretense of a cause of action against the plaintiff, and there was no sum of money due from the plaintiff to the defendants, and that the defendants had not been damaged in any sum whatever by reason of any misrepresentations made by plaintiff, and that plaintiff had, on December 5, 1910, made a full, complete reparation for any misrepresentations made by him to defendants, and plaintiff had not deceived defendants in any particular after said settlement of December 5, 1910.”
Dosch and C. G Benson having 'paid on account of the purchase of the land $4,000, McNair gave in money and
“As a result from the authorities, we think a doubtful or disputed claim, sufficient to constitute a good consider-action for an executory contract of compromise,” says Mr. Justice Bean in Smith v. Farra, 21 Or. 395, 404 (28 Pac. 241: 20 L. R. A. 115), “is one honestly and in good í¿aith asserted, arising from a state of facts upon which a cause
In the light of this rule, by giving to defendants’ conduct in the assertion of their claim for damages the most liberal interpretation possible, the only demand that they could legally have put forth was that the entire commission of $1,500 inured to McNair, so that the payment which he made for Page and himself to Fawk of money and notes, amounting to $4,935, should be diminished to the extent of the commissions, reducing such sum to $3,435, or to $565 less than paid by Dosch and C. G. Benson. This claim, though wholly unfounded, as we have attempted to show, might have been asserted with a reasonable belief on the part of the defendants that they had a fair chance of recovery. When, however, $4,500 and the transfer of an undivided one-sixteenth interest in the 322 acres of valuable orchard land, estimated by the defendants to be worth $200 an acre, was obtained under the circumstances hereinbefore detailed, in satisfaction of a claim of $565 that might honestly have been put forth, the exaction resembles a method of securing money and property not sanctioned by a court of equity, to say the least. Story’s Eq. Juris. (10 ed.) § 239.
“This deal [referring to the difficulty between himself and the defendants] has been settled to the complete satisfaction of all parties concerned.”
The evidence shows that at the request of one of the defendants McNair visited him on the evening of the day stated, and after a labored effort of two hours a message was prepared, containing the information noted, to which that defendant alone subscribed his name, and for the transmission of which he collected from the plaintiff 75 cents and then gave the telegram, marked “collect,” to a messenger. Whether or not this message was ever forwarded cannot be ascertained from a careful reading of the testimony. But, however that may be, as the telegram was not directed to either of the defendants, it amounts to nothing more than a mere admission, and does not rise to the dignity of a ratification.
Believing that the testimony fully warrants the conclusions of law reached by the lower court, its decree should be affirmed and it is so ordered.
Affirmed: Rehearing Denied.