263 P. 568 | Cal. Ct. App. | 1928
Plaintiff had judgment against the defendant in the sum of $1,000 alleged to be due the plaintiff from the defendant for and on behalf of commissions earned in the sale of a certain band of sheep belonging to G.C. Long and his brother, J.R. Long. From this judgment the defendant appeals.
The complaint is in three counts. Judgment went for the plaintiff upon the first count, and as the findings of the court are simply general and to the effect that all the allegations of the first count of plaintiff's complaint are true and correct, it is necessary to set forth the same, which we do, as follows:
No testimony was introduced in relation to counts 2 and 3, and no findings were made thereon. Upon the conclusion of plaintiff's case the defendant moved for a nonsuit, which was denied. Defendant also interposed a motion for a new trial after the rendition of judgment herein, which motion was also denied. This appeal raises questions as to the correctness of the ruling of the trial court upon the defendant's motion for a nonsuit; also, on the motion for new trial and the sufficiency of the testimony to support the findings of the court. The point is also made that the findings and judgment are against law.
[1] Before going into the legal questions involved, it may be stated that there is no evidence whatever in the transcript to support the finding of the trial court that paragraph I of plaintiff's complaint is true. The plaintiff's own testimony in this particular is as follows: "Q. What arrangement did you have with G.C. and J.R. Long in regard to the sale of sheep belonging to them? A. Well, about the first of July, 1925, he (referring to one of the Longs not named) was over to my house one day and he wanted to know if I could sell the ewes for him; that was about the second or third of July, 1925, and I asked him when he wanted it, and he said if he could get $13.00 net a head he would sell them and that there would be about 2800 head, and I said, `Will you give me an exclusive option on them until the 25th of July, to sell them,' and he said, `Yes, and if they are not sold then, we can extend it,' and I said I thought I could sell them for him. Q. Were you figuring on buying them for yourself or selling them? A. I figured on selling them at a profit; I priced them to everybody at $13.50." There is no testimony in the record to the contrary; that the plaintiff simply had an option, or, in other words, was acting in the capacity of an agent to sell the band of sheep for the Long brothers. That this is true is further evidenced by one of the paragraphs, which we take from the opinion of the *421 trial court set out in the transcript as follows: "The evidence is undisputed that plaintiff was given an option to sell the sheep of Grover and Joe Long at $13.00 per head; that he interested defendant in the sheep and was to get 50 cents per head; that the Longs were not to pay him anything by way of commission or otherwise; that later the price was reduced to $9.00 per head on 200 ewes, and still later a reduction was made of $1.00 per head on 1000 head of ewes." When the findings of fact were signed the testimony which we have quoted and the views of the trial court as to the testimony expressed when deciding the case appear to have been overlooked.
The first paragraph of plaintiff's complaint and the findings of the court to which we have referred were apparently both based on the opinion of this court in the case of Flint v.Giguiere,
After this agreement had been entered into between the plaintiff and the defendant relative to the plaintiff receiving whatever might be the drop on the price of the sheep, the defendant entered into negotiations with Joe Long, one of the owners of the sheep, and secured a reduction on 1,000 head of said sheep in the sum of $1 per head. It is this drop in the price, as it is frequently called in the testimony and the briefs, that constitutes the basis of the plaintiff's action. The transcript further shows that the agreement as to the price of the sheep was made by the Longs on the ranch or range where the sheep were kept, and that after such arrangements the parties all came down to the town of Red Bluff and there the money was paid over. The sheep were kept at a place called Bartels. The testimony of Grover Long as to when he obtained notice of the commissions claimed by the plaintiffs is as follows: "Q. He told you that De Haven would take the sheep at $13.00 and pay him a commission of $250.00, but that if he could get you to come down, he was to have the drop? A. I don't know as he told me that he was to have the drop, but he said that he was satisfied that De Haven would take the sheep at $13.00. Q. Was that at Bartels? A. Yes. Q. Why did you drop down? A. That was done — my brother done that after I left there. I wasn't at Bartels when the deal was made. Mr. Patterson got there in the evening and I left there the next morning. Q. Did you tell your brother that then? A. I wouldn't say whether I did or not. If I did, I don't remember it." The brother, Joe Long, who negotiated the sale of the sheep at Bartels and had agreed with the defendant to reduce the price on 1,000 head thereof from $13 to $12 per head, testified in relation to the transaction under inquiry as follows: "Mr. De Haven never told me he would *424 take the sheep until after we got to Red Bluff. He said nothing to me about the sheep until we got to Red Bluff. Mr. Patterson came to me in the mountains that morning before we left, and he had been down to Mr. De Haven's Camp, and he said that Mr. De Haven and he had agreed on $250.00, and that they would fix the deal up satisfactory to everybody down there. Q. Did he say anything to you if you dropped any that he would get the drop? A. No, I don't remember about that. Q. When did you first hear about that, that he was to get the drop? A. Well, after we closed the deal with the sheep. Mr. Patterson told me, I believe the morning before we left Bartels when we went to see Mr. De Haven, that he was to get $250.00 and when we got to the Valley we would fix it up satisfactorily down there. Q. Did you hear that if you dropped in the price of the sheep that Patterson was to get the benefit of the drop? A. Yes, Mr. Patterson told me that. Q. When did he tell you that? A. After we closed the deal here. Q. You never did know that De Haven would give you $13.00 regardless of the drop? A. No. Q. You never knew it until afterwards? A. No. Q. If you had held up the price you would have gotten $13.00 for the sheep? A. I don't know that. Q. Mr. Patterson told you afterwards? A. Yes, Patterson told me afterwards. Q. He told you after the money was paid? A. Yes, sir. Q. And not before? A. No, sir."
Section
This section of the code and the principle there stated has received consideration at the hands of this court a number of times. The first case coming to our attention is that of Tate
v. Aitken,
In Whitnack v. Ellsworthy,
That an agent cannot recover commissions from either of the parties where there has been double-dealing by him, as appears in this case, was held in the case of Glenn v. Rice,
The facts in this case show that the plaintiff kept quiet when he should have spoken; that he did not tell the owners of the sheep that any reduction they made in the price would inure to his benefit, until after the deal had been closed. It was incumbent upon the plaintiff in this case to act fairly and honorably toward the owners of the sheep, and immediately convey to them the information that the purchaser was willing to pay $13 a head as soon as such statement had been made to him by such purchaser. Instead of so doing, he remained silent, and is in the position of seeking to benefit by his silence, when good faith and fair dealing demanded that he should speak. This is condemned by all of the authorities, and the law will leave the plaintiff just where it has found him and not permit him to gain by his breach of trust.
In the recent case of Gordon v. Beck,
In 1 California Jurisprudence, page 810, the following summary is made of the authorities holding that no compensation can be recovered from either principal, to wit: "The authorities, with practical unanimity, declare that if an agent is engaged by both parties to effect a sale of property from one to the other, or an exchange between them, not as a mere middleman to bring them together, but active in inducing each to make the trade, he cannot recover compensation from either party unless both parties knew of the double agency at the time of the transaction."
The rules of law governing cases such as the one under consideration, and condemning double agencies under circumstances such as are disclosed by the transcript in this case, are fully set forth in 1 California Jurisprudence, page 790 et seq.
It necessarily follows from what we have said that the judgment herein should be reversed, and it is so ordered.
Finch, P.J., and Hart, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 19, 1928.
All the Justices present concurred. *430