28 Ind. App. 665 | Ind. Ct. App. | 1902
The appellant was sued by the appellee to recover a commission for service as a real estate broker in finding a purchaser for the appellant’s land. Assignments questioning the action of the court in overruling the appellant’s demurrer to the complaint for want of sufficient facts, and in sustaining appellee’s demurrer to the fourth paragraph of the appellant’s answer, are pressed in argument.
The first paragraph of complaint showed that the parties made a contract in writing whereby the appellant certified that he had placed his described land in the hands of the appellee real estate agent for sale, and agreed to pay the agent “in case he furnish a purchaser for said property” certain percentages on the purchase price of the land, “price $40 per acre;” and the appellee accepted the property on such prescribed conditions.
It was alleged that the appellee advertised the land for sale, and procured purchasers therefor in the persons of IT. R. Snapp & Son, who were the owners of a valuable livery, feed and sale stable at, etc., and were engaged in the business of conducting the same, and wlm agreed to pay the appellant tire price asked by him as stipulated in the contract, $40 per acre, aggregating $8,320, if the appellant would accept in lieu thereof their said livery, feed and sale stable; that the appellee effected meetings from time to time between the appellant and Snapp & Son, and by and through the appellee, at the instance and request of the appellant, and in pursuance of said contract, such negotiations were entered into and had, that it was fully and finally agreed that the appellant should and would execute a good and sufficient deed of conveyance of his said real estate to Snapp &
It was not necessary, as it seems to be supposed by counsel for appellant, that the appellee should either find a pur
In the fourth paragraph of answer the appellant admitted the making of the contract with the appellee, but alleged that the appellee did not act in good faith with the appellant, and did not use his best endeavors to sell the property for the appellant on the best terms obtainable, in this, that the appellee fraudulently and secretly agreed and colluded with said Snapp & Son to induce the appellant to convey his farm to Snapp & Son in even exchange for said livery stable stock, and did fraudulently persuade and undertake to induce the appellant to make said trade, the appellee well knowing that said livery stable property was not worth as much as appellant’s said farm by $2,000; that as soon as the appellant discovered that the appellee was not acting in appellant’s behalf in good faith, as by his contract he was bound to do, the appellant refused to effect such exchange, and broke off all further negotiations with Snapp & Son.
Good faith on the part of such an agent is necessary to entitle him to compensation, but good faith must be presumed until fraud is shown, not by mere recitals, but by the
The appellee was employed, not to make a sale either at a certain price or on the best terms he could obtain, nor to procure a contract binding upon the appellant, hut to find a purchaser, the price of the land being stated. His engagement was performed when he brought the appellant into communication with one with whom the appellant himself agreed upon terms of a sale which was afterward frustrated by the appellant himself.
The answer fails to show a relation of agent and principal between the appellee and Snapp & Son, or by direct averment of facts to show a violation of duty imposed By the fiduciary relation between the appellee and the appellant.
Judgment affirmed.