275 P. 160 | Kan. | 1929
The opinion of the court was delivered by
This action was brought by Charles F. Moran and his wife, Edith A. Moran, against J. P. Thurman and John J. Wyatt, brokers, to recover a commission which the latter had fraudulently obtained from them in the sale of real estate which they owned. Upon the evidence offered by plaintiffs the trial court held that it did not establish a cause of action against defendants and a demurrer thereto was sustained. Plaintiffs appeal.
It appears that the plaintiffs owned a half section of land which they listed with defendants to find a purchaser. A purchaser was
The transaction with the purchaser was closed and a deed to him was executed. Out of the money paid by the purchaser, after subtracting the mortgage indebtedness which had been assumed by him, there remained the sum of $5,933.71, and of that sum there was due to the plaintiffs as commission $3,140.34, which was paid to defendants through plaintiffs’ agent, Paul Brown, who acted for plaintiffs under specific written directions as to the payment. These directions were carried out faithfully- by- Brown. The plaintiffs in their directions specified the sum due to defendants, to wit: $3,140.-34, and the transaction was closed and payment of commission made in May, 1918. Nearly nine years later, and on February 28, 1927, this action was brought by plaintiffs asking for the recovery of the commission paid to defendants in 1918, alleging that in the transaction defendants had not dealt openly and fairly with plaintiffs in reporting the sale; that they represented the land was sold for $20,000, instead of $24,000, the actual price, and that $4,000 of the named price of $24,000 was oil stock of the face value of $4,000, but
The defendants answered with a general denial and also an allegation that the cause pleaded by plaintiff was barred by the statute of limitations as it accrued, if ever, jnore than two years before the petition charging fraud was filed. The plaintiff, Moran, testified that defendants represented that the price offered for the land was .$20,000 in cash and $4,000 in oil stock which was to be accepted by them as commission for negotiating the sale, and that not until February, 1925, did he learn of the misrepresentation when he was told by the purchaser that no part of the consideration was to be paid in oil stock, and that he had not offered oil stock as part payment.
The evidence upon which the ruling was made included the following letters from .plaintiff, dated May 2, 1918, which specifically directed payment to defendants and on which a receipt of payment was indorsed:
“Wichita, Kan., May 2, 1918.
“.Mr. Paul Brown, Wichita, Kan.:
“Dear Sir — Out of the proceeds of the money you collect from Dr. Updegraff, you will please pay to J. P. Thurman and John J. Wyatt the sum of $4,000, less the following amounts:
To be paid...................................................... $4,000.00
Less:
Interest on first mortgage, Feb. 1, 1918, to Feb. 1, 1919.. $750.00
Interest on Swartz mortgage, Feb. 1,1918, to May 1, 1918, 62.50
Interest on Chappie mortgage, Feb. 1,1918, to May 1,1918, 17.16
Bonus of 50 cents per acre on pasture, 60 acres........... 30.00
- 859.66
Net amount to be paid.......................................... $3,140.34
“Yours very truly, C. F. Moran.”
On of letter the following: “15,933.71
3,140.34
$2,793.37
“May 9, 1918.
“Mr. Paul Brown — Pay to J. P. Thurman and John J. Wyatt, the $3,140.34 set out in this letter and I hereby acknowledge receipt of the amount coming to me, to wit, $2,793.37. C. F. Moran."
*691 “May 9, 1918.
“Received of Paul Brown the $3,140.34 stated in this letter.
J. P. Thurman.
John J. Wyatt.”
Payment was made under this direction with a check duly signed to Thurman & Wyatt for $3,140.34, on which payment was received by the defendants. From the moneys derived from the purchaser a check was issued to plaintiffs for $2,793.37, which was paid to plaintiffs as their portion of the purchase price. On May 2,1918, a letter of plaintiffs directing a delivery of the deed to the purchaser which included a statement of the amount to be collected after the deduction of the mortgages assumed, taxes and interest to be paid by the defendants as follows:
“Mr. Paul Brown, Wichita, Kan.: May 2, 1918.
“Dear Sir — You will please deliver my deed to the north half of 27-32-1 east, Sumner county, Kansas, to Cliff Matson for Dr. Updegraff, upon the payment of $23,000, less the following amounts as per attached statements:
Account to be paid..............................................$23,000.00
Less first mortgage and accrued interest to Feb. 1, 1919.. $11,750.00
Less second mortgage favor S. E. Swartz, accumulated interest and penalties................................. 4,143.54
Less mortgage favor J. N. Chappie, accrued interest and penalties ........................................... 1,082.16
Less taxes and penalties................................ 90.59
- 17,066.29
Net amount to be collected...................................... $5,933.71
“Yours very truly, C. F. Moran.”
Another letter addressed to Brown was the following:
“Mr. Paul Brown, Wichita, Kan.: May 2, 1918.
“Dear Sm — Out of the proceeds of the money you collect from Dr. Updegraff, you will please pay to J. P. Thurman and John J. Wyatt the sum of $4,000, less_the following amounts:
To be paid...................................................... $4,000.00
Less:
Interest on first mortgage, Feb. 1, 1918, to Feb. 1, 1919.. $750.00
Interest on Swartz mortgage, Feb. 1,1918, to May 1,1918, 62.50
Interest on Chappie mortgage,Feb. 1,1918, to May 1,1918, 17.16
Bonus of 50 cents per acre on pasture, 60 acres.......... 30.00
- 859.66
Net amount to be paid........................................... $3,140.34
“Yours very'truly, C. F. Moran.”
On May 7, 1918, the following receipt and release were given relating to compliance with other provisions of the contract and recognizing the cash balance due from the land and the amount to be paid to the defendants as their commission:
*692 “Wellington, Kan., May 7, 1918.
“Mr. Paul Brown, you are hereby instructed that whenever my deal is closed and financed according to contract that is to say to the extent of sixteen thousand eight hundred dollars on the same terms as is provided for in contract dated April 4, 1918, and supplemental contract dated April 20, 1918, which contract is on NE14 of sec. 11-33-2 west and SEU of sec. 2-33-2 west, then said Thurman and Wyatt shall have the $3,140.32, and same shall be paid to them by you out of $5,933.71, which you now hold. C. F. Mohan.”
On May 21, 1918, the following receipt and release was executed by Moran acknowledging fulfillment of the contract in other respects:
“May 21, 1918.
“Received of J. P. Thurman and John J. Wyatt satisfactory loans aggregating $16,800, and $150 in cash, in full compliance with contract, and full and complete settlement of deal except as follows: Said Thurman and Wyatt are to procure a $200 loan due Sept. 1, 1918, at 6 per cent interest, same to be secured by a chattel mortgage on one-third of the wheat now growing on the southeast quarter of sec. 2 and the northeast quarter of sec. 11-33-2 west; and I hereby release said Thurman and Wyatt of any claim of whatsoever kind. Charle F. Moran.
“Receipt and release: In fulfillment of contract as to procuring loans. C. F. Moran with J. P. Thurman and John J. Wyatt.”
While plaintiffs contend that the court erred in sustaining a demurrer to the evidence it appears that the evidence then before the court showed conclusively that the price at which the land was sold was $24,000, that there was no question as to the existing liens upon it, nor that the purchaser was to assume these. There was no question either that the price was actually paid nor that a written contract was made between plaintiffs and defendants before the transaction was closed and the deed executed to the purchaser. The plaintiffs undertook to say that defendants had represented something to the effect that they might have to take oil stock for the $4,000, over and above the $20,000 named, instead of cash, and he said that no such stock was ever received or tendered, and that only cash was to be paid. However, when the contract was afterwards made it was stipulated that the $4,000 reserved for commission might be paid in land, notes, mortgages,- money or other property and that plaintiffs would never be required to pay any other commission. That it was immaterial to plaintiffs in what form payment of the commission was made as the amount to be paid, whether in money or other property, was definitely stipulated. Defendants agreed to pay out of the $4,000 certain interest which was then due and other
There is a complaint of the reception and consideration given to the testimony of Paul Brown, the attorney, who acted for plaintiffs in the receipt and payment of the purchase money and in the delivery of the deed. They contend that being an attorney the letters and directions given' to Brown by plaintiffs were confidential and privileged. It will be observed that, while Brown was an attorney, the matters committed to him were not of a secret or confidential character.
On the other hand, the instructions given to him were extra professional in nature such as might have been given to an agent or
“There is no privilege as to statements by a client to his attorney for communication to a third person, or matters which the attorney, in the discharge of his duty to his client, is necessarily obliged to make public.” (40 Cyc. 2375.)
In respect to the character of communications to an attorney that come within the privilege, this court held that:
“In order for a communication from a client to his attorney to be confidential and to impose upon the attorney the duty of not disclosing the same it must be of a confidential character, and so regarded, at least by the client, at the time, and must relate to a matter which is in its nature private and properly the subject of confidential disclosure.” (In re Elliott, 73 Kan. 151, 84 Pac. 750.)
As shown the letters authorized Brown to deal with outsiders and settle with them according to the terms prescribed by plaintiffs and were not regarded by either plaintiffs or Brown as private or confidential. Among the many authorities treating on this phase of privileged communications see Bruce et al. v. Osgood, Trustee, 113 Ind. 360; Koeber v. Somers, 108 Wis. 497; Rosseau v. Bleau et al., 131 N. Y. 177; Williams v. Blumenthal, 27 Wash. 24; 28 R. C. L. 563.
The judgment of the district court is affirmed.