124 P. 523 | Utah | 1912
Lead Opinion
Respondent brought this action as assignee of one Bertha A. Dailey to recover the sum of $600 from appellant, which, it is alleged in the complaint, was received by it while acting as her agent in selling certain real estate belonging to her and for which amount appellant failed to account to her. Appellant filed its answer in which it denied the agency but
Respondent in support of bis claims among other evidence produced and introduced the following letter:
“Ogden, Utah, March 9, 1910. Mr. E. R. Dailey, Hills-boro, Ore. — Dear Mr. Dailey: As the real estate market is still a little slow, and not desiring to. keep you in suspense, we have concluded to take a chance on the property ourselves. Therefore we have made out a deed from the description on abstract, conveying property to the Pacific Realty Association for the consideration of $2000, with- the understanding, however, that we deduct $100 as commission as agreed upon. Please have deed properly executed before a notary public, having your wife sign as follows: Hertha A. Dailey, formerly Bertha A. Neighbor.’ It will be necessary for you to sign the deed also. As soon as deed is executed please forward same to the Utah National Bhnk of this city, instructing them to take up the McCormack mortgage and pay us $100 and send you draft for the balance. We have collected one month’s rent of twelve dollars and are holding same subject to your order. If you have the water stock in your possession belonging to the property, please have-
Respondent also produced another letter written by appellant to the Daileys dated March 31, 1910, in which appellant
Respondent further proved that about the 5th or 6th of March, 1910, and before any of the letters were written, appellant, through its officers, had negotiated with one Williams for the sale of the real estate in question for the consideration of $2500. It was made to appear, however, -that, although the purchase price had been agreed upon, Mr. Williams did not fully make up his mind to take the property until the 11th day of March, or two- days after the first letter to which we have .referred was written to the Daileys in which appellant proposed to purchase the property for the sum of $2000. On the day aforesaid, when Williams had concluded to purchase, he, as part payment of the purchase price, gave appellant a check for $500, and about a month thereafter, towit, the 14th day of April following, he paid the remainder of the purchase price and obtained a deed of conveyance of the property from appellant. It is also made to appear that the Daileys, immediately after receiving the first letter, executed and transmitted through the United States mails from Oregon to Ogden a deed conveying the property to appellant, and that appellant had settled with
On behalf of appellant its officers in substance testified that they were acquainted with the Daileys; that while the Daileys at one time .were- residents of Ogden, Utah, they, several years before, had moved to Hillsboro, Oregon; that during the winter of 1909-10 they visited their friends in Ogden, and while there they came to the witnesses with a view of having them either buy or sell the property in question. Mr. Hill, at one time- an officer of appellant, testified that both Mr. and Mrs. Dailey had been to see him several times about buying the property; that about the 10th of January, 1910, or at least between that date and the end of the month, they again came to see him and told him that they could not stay much longer in Ogden but would have to return to Oregon soon to attend to their business affairs; that they wanted him to take the property. By reference to the bill of exceptions it appears that this witness testified as follows:
“I told them, ‘No-,’ not then, I couldn’t take it, because we bought a good deal of property and I am still not in a condition to take it. They said: ‘We will go; we will leave this with you; you can have it; if you want to buy it yourselves*616 you have an option on it at that price, or you can sell it to anybody else as long as you net us $1900; that’s all we want for the property; if you get us $1900’ we will be satisfied.’ ”
On cross-examination be further testified that the agreement between himi and the Daileys was to the effect that if appellant sold the property it was to have a commission of $100 to be deducted from the $2000; that nothing was said about what appellant was to have if the property was sold for a larger sum; and that appellant could buy it for $2000, and if so could deduct the $100 as commission; what the Daileys wanted was $1900 net.
Mr. Critchlow, who at the time of the trial was the secretary of appellant, testified that both Mr. and Mrs. Dailey came to appellant’s office and that they there had a conversation about the sale of the property; that Mr. Hill, the witness just referred to, spoke to the witness in presence of the Daileys saying: “Mr. Critchlow, what do you think about buying this property?” The witness in his testimony continued as follows: “I didn’t think just then we were in a position to consider it, and Mr. Dailey made the remark, ‘We are anxious to get away; we have stayed here longer now than we should have done; and we would like to malee some disposition of the property before we leave.’ He said: 'If you take the property you are entitled to a commission, the same as anybody else; $1900 is all we want for the property.’ And he urged us to take it, and the answer we gave him there was to the effect we would do the best we could, and we assured him we would either buy the property ourselves or turn it over to somebody else, and he told us he couldn’t wait any longer, he had to go- And that was about the substance of the conversation.” This witness also said that the D'aileys were in appellant’s office a number of times trying to make some disposition of the property upon the conditions testified to.
It appears that the Daileys left O'gdem a short time after the foregoing conversation took place, and that the matter as between them and appellant was left in abeyance until March 2, 1910, when they wrote a letter to' appellant asking what,
Counsel for appellant insists that in view of the foregoing facts appellant’s relation to the Daileys was that of a purchaser and not that of an agent, and for that reason appellant was not required to disclose the offers of Mr. Williams nor the price for which it sold the property to him. We think, however, that the testimony is clearly to the effect that, while appellant was given the right or an option to purchase the property at the stipulated price of $2000, it was also understood between it and the Daileys that appellant should continue to represent them in any sale that it might or could make of the property to any one else, and that in case the property was sold to any one else, or if appellant bought it for the consideration of $2000, it in either event was entitled to a $100 commission. The trial court apparently took the position that the only relation between the Daileys and appellant was that of principal and agent, and that appellant as such agent, in not disclosing all of the facts with regard to the offer of Mr. Williams and the proposed sale to him, was guilty of bad faith and concealment constituting fraud, and hence it must not only account to the D’aileys or their as-signee for the purchase price received from Williams, but must also account for the stipulated commission for the reason that it had forfeited the right to the same by its conduct.
There is no doubt under the authorities that, under the arrangement between appellant .and the Daileys, if at any time before it commenced negotiations with Mr. Williams for the sale of the property to him, and without knowledge that he desired to purchase the same, and in the absence of any offer from any other source of a price in excess of $2000, it had concluded to purchase the property and had accordingly advised the Daileys of its election to do so, and, if the
The difficulty with the case at bar, however, is that the appellant’s election to purchase the property from the Daileys' seems to have been inspired after its officers became aware that Mr. Williams desired to purchase the property, and after a purchase price in excess of $2000 bad at least been discussed between him and such officers. The negotiations for the sale of the property to Mr. Williams bad therefore commenced before appellant was the owner of
It does not always follow as a necessary corollary that in case it is found that the agent should account to his principal for a larger amount than he has accounted for, that for that reason alone he also forfeits his right to compensation.
“Fully recognizing the rule that where an agent has violated his trust, or has been guilty of fraud or gross neglect of duty, thereby imposing upon his principal the necessity of expensive litigation in order to secure his rights, the penalty for such fraudulent conduct or willful violation of duty is the forfeiture of all compensation, yet this rule should never be applied to mere mistakes in the keeping of an account, or errors of judgment, or other omissions which do not amount to misconduct or gross and culpable neglect or disregard of duty.”
While we are clearly of the opinion, as was the Supreme Court of Indiana, that in view of all the facts the agent in this case should account to the principal for all the money received, yet, like that court, we are also of the opinion that in view of all the facts and circumstances the
The judgment therefore is reversed, and the cause is remanded to the district court of Weber County, with directions to set aside and vacate the findings of fact and conclusions of law in so far as they are inconsistent with this opinion; to require the appellant to account to the respondent for the full amount of the purchase price received by it for the real estate in question, but to allow .the appellant the sum of $100 as compensation, and to- deduct the same from such purchase price; to make findings of fact and conclusions of law in accordance with the foregoing views-, and to enter judgment accordingly. Respondent to pay the costs on appeal.
Dissenting Opinion
(dissenting).
I dissent. I think the judgment should be affirmed. It was alleged in the complaint that the assignors of plaintiff entered into an agreement with the defendant, a real estate agent or broker, by the terms of which the defendant undertook to. procure a purchaser and negotiate a sale of the property for not less than $2000, for which the defendant was to rceive a commission of five per cent of the purchase price. It is further alleged that the defendant procured a purchaser who was able and willing to purchase the property for the-sum of $2500, and that the defendant to obtain larger compensation than was agreed upon and to cheat and defraud the assignors withheld from them the fact that it had procured a purchaser for the sum of $2500, and falsely stated to them that, owing to the dullness of the real estate market, they were unable to find a purchaser, and proposed that it would itself purchase the property for $2000 less a commission of $100, and requested that they execute a deed in its name and forward it to the defendant; that they, relying upon and believing the representations to be true, executed and forwarded the deed to the defendant, who in turn conveyed the property to the
I see no reason for allowing the defendant a commission. The evidence clearly shows the relation of agency between the defendant and the assignors. They listed the property with the defendant to be sold for a price not less than $2000, for which the defendant was to receive a commission of five per cent of the sale price. After the property had been listed with it for some time, and just before the assignors left Utah to go to Oregon, they called on the officers of the defendant having charge of its business and expressed a desire to dispose of it and requested the defendant to buy it. The officer told them that they had purchased a good deal of property and that they were not able to do so. Thereupon the assignors said to them, as testified to- by one of the officers, “We will go; we will leave this with you; you have an option on it at that price ($2000), or you can sell it to anybody else as long as you net us $1900; that is all we want for the property; if you get us $1900, we will be satisfied.”
Another officer testified that the assignors said, “ ‘We are anxious to get away; we have stayed here longer now than we should; and we would like to make some disposition of the property before we leave. If you take the property you are entitled to a commission the same as anybody else; $1900 is all we want for the property,’ and he urged us to take it, and the answer we gave him was that we would do the best we could, and we assured him that we would either buy the property ourselves or turn it over to somebody else.”
There the matter rested. The assignors left Utah and went to Oregon on the 2d day of February. The defendant «continued to show the property to prospective purchasers,
The court having, found and the evidence showing that the-relation of agency existed between the assignors and the defendant, and that the purchaser was procured and the property sold in pursuance thereof, I think the defendant, the-agent, did not truthfully make known to the assignors, the-principals, all matters pertaining to the transaction, fraudulently misrepresented and suppressed facts concerning it, and undertook to derive an advantage to itself in violation of its duty to the assignors, and therefore forfeited all claim to a commission or other compensation.
Conceding that 'the assignors before they left Utah to go to Oregon offered to sell the property to the defendant for $2000, less $100, yet it clearly appears that the defendant
I think the judgment of the court below is right.