167 Ind. 440 | Ind. | 1906
Lead Opinion
In the spring of 1902 appellee owned twenty-one acres of land near the city of Auburn, known as the Fair Grounds. Appellant Pomeroy was a real estate broker located in Auburn. At the time referred to Wimer authorized Pomeroy to sell the Fair Grounds for $1,000, and directed him to advertise the property in the local papers at his (Wimer’s) expense. The price was subsequently reduced to $750, but in August or September following, no sale having been effected, it was determined by the parties to discontinue the advertisement. Nothing was said at the time as to whether the agency should close or continue, but on separating Wimer said to Pomeroy: “If you get hold of a piece of ground to sell, for which I can turn ^ the Fair Grounds as part pay, let me know.” Appellant Esselburn, a timber buyer, having come across a farm of seventy-five acres, belonging to the Sommers heirs, that was being offered by Michael Boland, as agent, for $30 per acre, and having on it much valuable timber, which Esselburn desired, came to an agreement with Pomeroy that they would buy an option on the farm for thirty days at $30 per acre, and if they failed to sell it before the expiration of the option they would jointly raise the money and pay for it, and take chances on making a profitable sale afterward.
On December 9, pursuant to the agreement, Pomeroy, in his individual name, “as agent of unnamed principal,”
Judgment reversed, with instructions to grant appellants a new trial. _
Rehearing
With respect to the motion for a new trial it may be said that it appears from the record that a joint and separate motion was overruled, and upon which ruling a joint and separate assignment is made in this court, the defenses not being identical. Appellants in their brief, under the heading of “Errors Relied upon for Reversal,” state: “Separate assignments of error have been made by each appellant assigning one error only, viz., that the court erred in overruling his motion for a new trial. Some of the causes for a new trial' are available to each of the appellants and some to one of them only. To avoid confusion we set forth separately the errors relied upon by each appellant. The appellant Esselbnrn relies upon the following errors for a reversal as to him: (1) The verdict of the jury against him is not sustained by sufficient evidence. (2) The court erred in giving to the jury instruction two,” and so on, specifying, in five additional items, error in like terms as to instructions numbered three, eight, twelve, fifteen, and eighteen. Then follows separate, similar statements as to appellants Weeks and Pomeroy—each of the three selecting from his motion for a new trial, which con
2. What then is the nature of the commission, the appointment in this case ? Its scope is found within the limits of these three words, “Let me know.” As shown by the facts stated in the principal opinion, Wimer and Pomeroy, having decided to give up the effort to sell the Pair Grounds for cash, as they separated, Wimer
Now what was done under this appointment, if it may be called such ? The parties met in Pomeroy’s- office. Wimer, in company with appellant Weeks, had seen the land; had fully examined the quality of the soil and had a report from an expert as to the value of the timber. Pomeroy, at the time of their first meeting, had never seen the land, and informed Wimer that he and others were holding it for speculative purposes, but would trade it to him for his Fair Grounds and $2,400 cash. A bargain was struck and a written contract executed on this basis. Two weeks later when the parties again met at Pomeroy’s office, by appointment, to exchange the deeds, and before the exchange, Pomeroy fully informed Wimer that he and his coappellants were the owners of the land, what they paid for it, and the amount of their profits on the contract basis.
Appellee makes no pretense that he was deceived or in any way overreached in the trade, or that the farm he got was worth less than he paid for it, and, as we understand it, relies wholly upon the technical disability of his agent to buy a farm and trade it to him at a profit. The transaction, as we have seen, was characterized with no discretion in the agent, no special confidence, no reliance upon the agent’s judgment or skill, no authority to bind nor obligation to advise, made at arms length, on fair terms, with full knowledge of his adversary, and all material facts, and presents such a case as clearly made it error for the court to charge the jury, among other objectionable things, that it is “undisputed that when said defendant Pomeroy entered into said contract with said Wimer for the sale of said land he was holding said twenty-one acres as agent for the plaintiff for sale.”
Petition for rehearing overruled.