59 Colo. 138 | Colo. | 1915
delivered the opinion of the court.
Defendants in error brought an action to enforce specific performance of a contract, claimed to have been executed by Pace, by his agent, whereby he agreed to convey to them a lot in Paonia, and to cancel a deed executed by Pace to Mrs. Curtis for the lot in question. For answer Pace admitted that he conveyed the property to Mrs. Curtis. By way of cross-complaint Mrs. Curtis alleged that she employed plaintiffs in their capacity as real estate brokers, to negotiate with Pace for the purchase of the lot; that they secured from him an option to purchase in their own name; that thereafter they wrongfully repudiated the agency, and claimed the contract was for their own benefit. The plaintiffs replied to the cross-complaint, putting in issue its affirmative averments. Other issues were made by the pleadings, which it is not necessary to consider, for the reason it appears that the vital question is whether from the testimony it was established that plaintiffs, in securing the contract from Pace, were acting as the agents of Mrs. Curtis. The trial court found in favor of plaintiffs, and rendered judgment requiring Pace to comply with his contract, and annulling the deed from Pace to Mrs. Curtis. From that judgment the defendants appealed to this court. The cause was transferred to the Court of Appeals, where the judgment was affirmed, Pace v. Cline, 22 Colo. App. 254, and defendants bring the case here for review on error.
From the testimony it appears that Pace owned two adjoining lots, which he was desirous of selling in connection with the lot involved. Curtis testified that after he employed Hufty and Cline to make the purchase, Hufty told him he had a reply from Pace in which he stated that if he sold the corner lot (the lot in question), the price would be fifteen hundred ‘dollars; that he told Hufty to write Pace and tell him he wbuld give twelve hundred dollars, provided he would vacate the alley in the rear; that Hufty said he would; that Hufty afterwards told him Pace stated in reply that if he sold the lot the price would be fifteen hundred dollars; that he asked Hufty what was said about the alley, and was told that Pace said nothing; that he afterwards told Hufty if he could buy the corner lot for fifteen hundred dollars, to buy it, and if he could not buy that lot without buying the whole three for six thousand dollars, to buy them all. He further testified it was understood with Cline and Hufty that if the purchase was made, they were to have a written contract giving them the right to occupy the office they were then occupying as long as the building then on the premises remained there, at the same rental they were then paying, and if his wife saw fit to improve the property, she would give them the refusal of an office on the ground floor; that Hufty asked him what the rent would be, and he told him it would depend on the cost of the building, and he presumed it would be from twelve to fifteen' dollars per month, to which Hufty replied that this was agreeable. It appears from the testimony that Hufty never wrote Pace or received any reply from him regarding the lot relative to its purchase by Curtis.
Curtis also testified that after instructing plaintiffs to purchase for fifteen hundred dollars, he bailed on Cline and •Hufty and inquired how the matter was progressing, and
In a letter to Pace by Cline and Hufty, written a few days after they had obtained the contract from Campbell, they stated in substance that they were in no particular hurry about closing the deal, but they wanted to know that they were not to be driven off the corner, as some of their enemies had threatened; that they were making the deal as a matter of self-protection, and preferred that it be not made public, and as it concerned no one but Pace and themselves, “trust no one will be made the wiser.”
From this synopsis of the testimony the important question is whether the relation of principal and agent between Mrs. Curtis and plaintiffs was dissolved. If there was a substantial conflict in the testimony on this issue of fact, then the finding of the trial court should not be disturbed on review, but an analysis of the testimony discloses there is not. The only testimony which tends in the slightest degree to establish that plaintiffs in procuring the option were not acting as agents for Mrs. Curtis is the statement of Hufty to the effect that Curtis said he would not give more than twelve hundred dollars for the lot, “and it ended there.” That this ended the relation between the parties is a mere conclusion, however, of plaintiff Hufty, and contrary to other undisputed testimony. Hufty says that at
The only remaining question is to declare the law applicable to this state of facts. An agent without the full knowledge and consent of his principal cannot purchase for himself property which he is employed to purchase for his principal. If he does so it is a breach of faith, and he will be regarded as holding such property in trust for his principal. 31 Cyc. 1441 ; Johnson v. Hayward, 74 Neb. 157, 103 N. W. 1058, 107 N. W. 384, 5 L. R. A. (N. S.), 112, 12 Ann. Cas. 800. We therefore conclude that the contract taken by Cline and Hufty was for the benefit of Mrs. Cur
The judgment of the Court of Appeals is reversed and the cause remanded, with directions to enter a judgment reversing the judgment of the District Court, and remand the cause to that tribunal, with directions to enter a judgment that plaintiffs take nothing by their action, and to dismiss the cause at their costs.
Judgment reversed and cause remanded with directions.
Decision en banc.