*1 in the relating Errors instructions differences degrees between the murder not, of course, prejudicial far charge so as the deadly assault with a weapon with intent to commit murder concerned, Code, (Pen. for the law 217) recognizes no § such as com offense assault intent to mit murder second, opposed degree. as to the first,
So far charge as the murder concerned, in a case such this, impel where the facts a conviction of murder of degree the first both because the murder was committed perpetration robbery and because it committed lying means of in wait, and do not upon admit view finding evidence of a other than of murder of the first degree, there is give no occasion instructions whatsoever to as to the differences degrees Hence, between the of murder. although the instructions as to such festly erroneous, the mani differences were prejudiced
errors cannot have appeal ing defendant.
The judgment and appealed order from are affirmed. Gibson, J., Shenk, J:, C. Carter, J., Spence, Traynor, J., and J., concurred. Edmonds, J., judgment. concurred in the A. May No. 19512. Bank.
[L. 1946.] W. S. RATTRAY, Respondent, SCUDDER, v. HUBERT B. Commissioner,
as Real etc., Appellant. Estate *2 W. Kenny, Robert Attorney General, Bowers, Walter L. Attorney General, Assistant Kegley, Carl S. Deputy At- torney General, Appellant.
Mack, Werdel & Respondent. Bianco D. Bianco Hyman Hyman & as Amici Respondent. Curiae on behalf of TRAYNOR, J.By an order April 10, 1944, issued defen plaintiff’s dant revoked license as a real estate broker. trial court issued writ of commanding mandamus defendant to set aside this order. appeals. Defendant & associated with
Plaintiff is a real estate broker Upon complaint with defendant Son Bakersfield. filed Humston, John States L. then a lieutenant the United Army, against plaintiff proceedings defendant initiated licenses as real Edward A. for the revocation their following hearing estate brokers. After a defendant made the findings: January 19, 1943, “That defendant on or about Rattray complainant requesting price addressed a letter to property, consisting court, and terms on of a seven-unit Bakersfield, California; February 4, he owned in that on 1943, complainant replied, placed property, said stated that he would consider also 1943, fair offer; February 11, that on defendant complainant advising wrote a second letter to him that appraised had been competent appraiser; price, selling would be a fair and that commission added; would be said letter was enclosed an instru- ment, designated an option, sixty day period, for a in favor Son, embodying selling $12,000, signature complainant; relying repre- on those complainant signed sentations the option, said and returned defendants; it to that on March a third letter was *3 addressed complainant by to Rattray stating defendant that trying property meeting sell the he was with certain obstacles, namely, price property and the fact that the district, suggested in an unrestricted complainant and price that $10,000 cash, be reduced thought which he complainant would in accepting, pressed be wise and said complainant acceptance for an immediate so that the trans- might action be consummated period ‘within the of our exclu- listing’; 15, sive April 1943, that on long telephone distance conversation was held between Rattray defendant and the complainant, at which time Rattray defendant repeated that $10,000 net very was the price best that he obtain; that complainant by stating countered accept he would than less $10,500 cash, net finally compromised but price on a expense net cash with no to him in ; the transaction during negotiations
“That complainant with out as set preceding in the paragraph, defendant Rattray led com- plainant acting agent believe that he was as his in this transaction, agreed and when terms and upon, were necessary expenses all incident sale, together to the with the regular selling commission, added, would be relying 5% cash complainant accepted the net upon this belief the for his property, for not have done so but the said understanding; upon reliance that belief and Rattray “That prior April 15, 1943, the said defendant negotiated purchase of said Espey with one David L. property April on $13,500; the total property Espey, placed L. was sold to David escrow, $13,500; by refinancing, and the for the sum of complainant A. deeding Edward property defendant Kelly, escrow, in turn in who the same deeded the duly closed; L. Espey, to David the escrow was notwithstanding “That negotiations David L. Espey, the defendant same Rattray did not disclose the complainant, attempting and at no he was time told to sell $13,500; expenses that after all paid transaction, incident to the A. defendant Edward together signed by received the sum $2,326.25, with a note $700; David L. Espey the sum re- that out of the cash ceived Kelly, defendant approxi- Edward A. the sum of mately paid Rattray; $900 defendant all correspondence, negotiations,
“That repre- sentations made in this matter were carried and made Rattray; every defendant that each and one of the letters to complainant were on the Son, letterheads of signed '¥. S. & Son’; that defendant Kelly, during Edward negotiations, A. any way did not in complainant, communicate with and therefore it is not clear guilty knowledge that he had representa- of the statements and tions complainant by made to Rattray; defendant that inas- much as regard, there is some doubt in this the Commissioner will Kelly.” waive the doubt in favor of defendant Edward A.
Defendant plaintiff’s concluded that the revocation of li 10176(f) cense was warranted (f) under sections and 10177 ‘‘ the Business and may, Professions Code: The commissioner upon motion, upon his own and shall complaint the verified writing any person, investigate the actions person engaged acting in the capacity business or in the of a real *4 estate State, licensee within this may and he temporarily suspend permanently or any revoke a real estate license at time where immediately the licensee within preceding three years, licensee, while a real estate in performing attempt or ing perform any scope of the acts within the chapter of this
218 any following: Any . . guilty
has been of of the . other con duct, speci whether of the same or a different character than section, fied in this fraud which constitutes or dishonest deal ” ing. (§ (f)) suspend “The commissioner or revoke any licensee, years of the license real estate who within three following: immediately preceding any has done of the . . . Acted or conducted himself in a manner which have application license, warranted the denial real estate 10177(f))* or (§ for a renewal thereof.” A real estate license applicant can be denied if furnish proof fails to of “hon esty, good reputation.” (§§ 10150, 10152.) truthfulness and any additional
The trial court did not hear evidence. Bas- ing findings its record of the hear- on the commissioner’s two ings commissioner, before the court “it trial found: hearings any true neither of that at said was there evidence acting agent plaintiff that the herein as the for the com- plainant Humston; it is L. Hums- John L. true that said John agreed pay any plaintiff ton never commission to the herein any plaintiff; of the- services of the it is true that February 1943, complainant 15, John L. Humston on exe- plaintiff cuted herein and his to the associates complainant; the real of the it is true at no time pertinent relationship prin- herein did the cipal agent plaintiff exist herein and the ever between the complainant said L. Humston; John is true that at time pertinent any relationship herein did trust and confidence complain- ever exist herein the said between the Humston; ant John it is herein in L. true handling complaint to in the of said transaction referred John L. herein Humston filed with the defendant guilty any conduct which constituted fraud or dishonest any man- dealing and had not acted or conducted himself application ner which would have warranted the denial of his existing for a or of of his license.” license the renewal then With trial respect findings commissioner’s court plaintiff’s (§ *Under the statute time of activities effect at the 2124), p. the Beal Estate Act as amended the commis immediately Stats. any who within sioner preceding revoke license licensee years in a three himself manner would have conducted thereof, application for a or a renewal warranted the denial of his license dealing. guilty constituting or who was fraud dishonest conduct 10176(f) provisions incorporated change Those without into sections (Stats. 10177(f) and Professions Code ch. Business 841-842) 1, p. plaintiff’s license revoked. under which § *5 219 findings support do not said “it true that the found: plaintiff revoking the license of the order the defendant support the order not and it is true that evidence does it is plaintiff; of the revoking the license defendant defen- the said revoking plaintiff that in true license contrary law and arbitrarily, capriciously dant and acted ’’ findings evidence. unsupported and are order automat expire this real state all estate licenses 10200.) ically year. & (Bus. Code, on 30th of Prof. June each § present litigation plaintiff’s not become moot because has 30, 1944. expired any license on June would event rights plaintiff depend license or not that whether validly revoked, may be was, for if it a new license with 10150, ground. (Bus. held & Code, on the same Prof. §§ 10153.)
In determining
appeal
necessary
is not
to discuss
scope
of review
trial
court
commissioner’s
proceedings (see
Medical Examiners,
Dare v.
The evidence plaintiff shows without conflict that was em- ployed by Humston correspondence as a broker. The initiat- ing the relation between Humston no leaves doubt that plaintiff offered Humston his services as a broker January Humston retained him in capacity. On 1943, plaintiff wrote to stationery “Kelly Humston on Son, real licensed estate brokers” as follows: “We have client who is in purchasing property interested in this dis- thought you trict your might wish property. to sell Ac- cordingly, pleased we will be to receive the and terms acceptable you, your stamped and enclose re- envelope for ply.” When willing Humston advised that he was to sell $13,000, take a small second mort- gage, and to offer, consider fair any plaintiff replied: “Our prospective buyer Taft, lives in not so we will contact him until you we have again. heard from prop- We have had your erty appraised by a competent appraiser. Considering age of buildings furniture, a heavy depreciation, has a fair $12,000.00. would To this we have to would can arrive at selling presuming
add commission that we mutually satisfactory enclosing are herewith basis. We signed receipt option your Upon signature. your proceed closing reply, with the work we will willing in the you sale. terms to make Please state what space be that our client marked with cross. It will should, require terms, in the but event he we intro- like quote him.” These letters know what duced in the commissioner and there was evidence before They indisputably evidence contradicting them. show *6 plaintiff employed pur- a offered his to find services and was property to the for willing acquire chaser and able plus selling commission a for Plaintiff himself testi- plaintiff. writing “My purpose fied his first for the letter as to letter: it, get provided a so I sell listing property was to authority I sell property—to would be able to have to the ’’ person might willing buy I whom contact who was to it. plaintiff once The evidence also shows without conflict that reported him as employed was Humston he a broker documentary principal. does to his Uncontradicted evidence introduced, by plaintiff Humston, a more letter written stating: than correspondence “We a month after their initial the diligently purchaser have find for working been way of Street, Court on ‘P’ of the obstacles the but two being unre- effecting First, sale been: have district objectionable who people stricted has been two three might property. considered the second otherwise through objection price. purchased As the property this a more definite office,we are able to arrive at valuation posted than as we might other not be as well some officewho inquire purpose you morning are. this is to writing Our you $10,000.00 cash, we have whether consider as would prospect now, likely provid- property who will this financing buying prop- ing we can do some for him. Since a de- erty ago, has been through years this office some there preciation year, $2,000.00. least total at which would 3% therefore, you We, would present believe that under conditions accepting offer, providing be cash are able wise this we you to. arrange financing as referred Will hereinabove immediately acceptable if therefore, let will be us know event you, that we our proceed so can work. likely able you offer, consider this we would most would period give you on the definite information sale within that of this letter listing.” evidence of our exclusive Hum- himself to represented acted as broker and plaintiff testimony: “I cannot as such is corroborated his own ston selling give verbatim—along property— lines inquiries— it—had diligently told him several working on being high—told complained several had too about and then thirteen him had it for fifteen thousand advertised complained showed him the had about ads—others objections I out to him. pointed unrestricted district—the get However, very I I can and in touch.” do the best It had is clear that not have occurred this conversation could actively not plaintiff considered himself Humston’s broker sought a purchaser.
The evidence also shows without conflict that after purchaser fiduciary secured a property he violated his misleading duties as a broker and untruthful and state- upon ments principal price placed induced his to reduce testimony plaintiff’s to sell it to firm. The Espey, of Mr. acquired who property, was uncontradicted saw part in the March him latter and told although he deemed the property worth not more than $12,500 he willing buy $13,500. ‘‘I would be told I light I knew that was far as the payment down concerned; Parkway another Pine that I *7 possible—as part could use a as of the down payment. I him neighbor- told at the time that because I hood that did not property consider the worth more $12,500, willing give than but $13,500 would be because way I buying would be property itself, it—that regular income thing and that sort of seemed to make it a profitable willing I venture and be take over the deal on that basis.” Espey also testified without contradic- tion that a week or more after first conversation he had another plaintiff plaintiff conversation with in which told him that he had not been able induce the owner of the property, Mr. Humston, price to reconsider the that he was asking for the property, that he had some doubt whether he Espey would be able to let $13,000 the property for might that there difficulty financing some the deal because of the small amount of cash Espey that but that Espey should plaintiff’s leave the matter in hands. Plaintiff’s got firm in touch with one Ceccarelli and his wife, who had twenty-five years, & with Kelly Son business done matter with They first discussed the regard Espey. ato loan to later property and showed her the showed Mrs. Ceccarelli first loan installment property to Ceccarelli. April on April 16, 1943, and the balance was received on long telephone distance plaintiff had April 1943. On 15th “I Lt. Humston told conversation with Humston as follows: price he had property I his was unable to sell that get only way $10,000 we him upon it, placed and the it; ‘I buy accept He said it ourselves. won’t cash would be to give.' $10,500.00, you I will I said if that is all accept will said, $10,000.00.’ $10,500.00; pay He we will pay ‘we will not accept $10,- $10,250.00?’ you I ‘Will you pay said ‘Will you I I ‘Will ‘Yes,’ said, think, ‘I said 250.00?’ will.’ by the entire conversation confirm wire?’ That was that testimony shows that he did Plaintiff’s own thus recall.” buy Espey willing that not reveal to Humston $12,000 Humston had property price exceeding the for a $10,750 for the or the amount of originally property asked later, but made the untruthful statements that he had asked “I unable to to Humston that sell only way that “the we could upon it” and placed he had get buy it After $10,000 cash would be ourselves.” telegram $10,250 receiving reducing Humston’s Espey day, April next plaintiff sold $13,500. Documentary evidence introduced before 1943, signed Espey conflict showed without the commissioner $12,500 securing and the deed of trust note for the loan of day 16th; the same April that on escrow instructions by given by Espey; sales, that both sale Humston were Espey, & the sale & Son to Son and were Kelly & escrow; completed in the same Son any part purchase price to Humston paid from never funds, received out the escrow about their own but about secured $700 a note of second deed of cash and by Kelly $10,250 paid Son to trust; and that from cash deducted amount re- simply & Son. ceived light the uncontradicted
In the documents and questioned plaintiff’s testimony, it cannot be own agent, a real fiduciary duties of estate for “The violated the *8 agent . imposed on . . the real estate law of California loyalty that it obligation of undivided service im same
223 of Ms beneficiary. Ms Violation in favor of poses on a trustee consequences that are subject punitory to the same trust Wise, (King v. disloyal recreant trustee. provided for ” 192, 196 628.) (Langford Thomas, v. 200 Cal. 43 [252 Cal. duty charged with the 602].) agent P. Such concerning material facts the trans fullest disclosure of all (Civ. might Code, principal’s affect decision. action that Thomas, 197; Langford supra, Williams v. Look 2230; v. § Gamble, wood, 598, 587]; 601 175 P. Feckenscher v. Cal. [166 482, ; Curry King, 495 v. 6 Cal.App. 12 P.2d Cal.2d [85 885] 662]; Logue, 565, P. Silver 571 568, Cal.App. 575 v. 127 [92 Minster, Co., v. 53 ; P.2d Jolton Cal.App.2d [16 183] Graf Madsen, 516, 101]; 522 Baird v. 57 Cal.App.2d P.2d [128 885].) present case, 476 P.2d there can [134 have be no doubt that Humston would not sold the property & Son for that Espey had he known stood ready $13,500. property Nor buy plaintiff could doubt that had Humston known this fact he would property &Kelly not have sold Son. He not failed misrepresentation to disclose the truth but made the that he price placed was unable to sell the at upon it plaintiff Humston. Even if had not been Humston’s broker fiduciary duties, under no question once discussed the higher price obtainable, whether he had “speak truth, by partial suppression whole and not or concealment make the utterance untruthful misleading.” (American Co., Trust v. etc. Ins. Co. Cal.2d 65 [98 California 497].) P.2d finding of the trial court that there was no evidence acting agent Humston’s is so clearly the documentary inconsistent with plain evidence as well as testimony tiff’s own that it can be explained being only as upon that, theory based since plaintiff’s firm op had an tion purchase purchase and did property, plaintiff length deal with Humston at arm’s bound was not by any fiduciary duties. It does not follow, however, that acting was not as a broker this matter. It is well settled that a broker employed find purchasers principal of his given “running can be an option, agency” with the concurrent property. (W. G. House, Reese Co. v. 740, Cal. P. 442]; Burt v. [124 Stringfellow, 48 Utah 330 527]; Neighbor P. [159 v. Pacific *9 224 523, Ann.Cas.
Realty Association, 610 34 40 Utah P. [124 160 392 N.W. 1200]; Walling Poulsen, v. 1914D Mich. [125 33; 554; 12 C.J.S. Agency, 390; see 4 Cal.Jur. 373]; Rest., § case, broker, pur when 1040.) 8 In the Am.Jur. such a suing interests, ignore principal his own cannot those of his advantage enjoy an permitted and will not “be the fruits of to fiduciary relation, dominant characteristic taken of whose King, (Curry reposed by is in another.’’ v. the confidence one 568, been stated supra, Cal.App. 575.) It has therefore ,‘ right agent the has also law does not allow who that amount makes offer of an to to until someone an wait pur to agreed purchase and then elect excess of the the informing property chase the at the lesser without obtained higher agent offer, of the and after the has owner buy imme property, consent from to then the the owner the property.” diately higher price sell it for the as his own (Neighbor Realty Association, supra, v. 40 Utah Pacific 1200].) 1914D is P. 34 Ann.Cas. law well [124 “If broker Jurisprudence in 8 American 1040: summarized given option pur is an employed property to sell also ... himself, occupies chase the he dual status the his agent purchaser he to exercise is not entitled agent option except by divesting obligation himself of his by making posses a full in his disclosure information But making a sale to another. . . prospect sion as . any negotiations if its sale he his exercises before knowledge of anyone another have been made without obliged wishing purchase, he not to account to the owner is ’’ agent One as an also on resale to another. who acts agency subject principal his as to the matter of deals with withholding from advantage principal by take of his cannot agency. means information secured dealing Agency: “Before language Restatement of agent has a principal account with the on his own ... duty, fact, also only not to make no but misstatements fully com all material principal disclose to facts agent if it is pletely. A fact material ... one likely judgment affect the should realize giving enter into agent his to the principal consent Hence, on the terms. particular specified transaction agent only the fact that must include not disclosure ., acting but also all other facts which account . . his own bearing upon likely to have he realize have should viewpoint of desirability of the transaction from the (§ a.) principal.” plaintiff dis- Comment When principal buy- & closed no more to his than that Son was ing agent. property he fell his duties as an It was short of negotia- pending duty fully of to advise Humston fiduciary only Espey. tions with Plaintiff not violated his law duty disclosure, beyond that the but went the limits duties, mis- fiduciary one even for who has no draws represented the facts assured Humston that he when he price placed upon obtain the and that Hum- re- at ston could do better than sell to Son price. Espey duced The fact that cash and that $400 *10 greater part purchase price therefore the had to by loan plaintiff’s covered a affords no conduct. excuse for standpoint From the a cash Espey of the seller was as much buyer as did to one who not need a loan. immaterial It was purchaser’s Humston whether the cash came from own funds whether he had to secure it Since from a lender. Kelly & Espey ap- Son’s sale to receipt resulted in the proximately $12,800 cash it is clear that Humston would gained from a Espey more sale to & than the one to attempt Son. Moreover it plaintiff was understood that would purchaser. obtain a loan for plain- a In one his letters tiff asked Humston whether he consider “would cash, prospect as we have a likely purchase now who this will property providing can It financing we do some for him.” does not matter, however, plaintiff whether was under obligation to attempt Espey. Humston to secure a loan The decisive consideration suggested is that when Hum- he ston that the latter plaintiff’s sell the firm, he under duty á to disclose Espey pay $13,500 if by pri- could be a financed vate loan and negotiations to disclose the made secure It loan. Humston, immaterial that according plaintiff’s testimony, plaintiff: later said to “I you don’t know what got folks it, out but I am satisfied I with it. will have little over nine thousand I dollars when bills.” pay some few At that time plaintiff Humston did not misled know that had him when he induced reduce the Hum- price. When ston learned that complaint been misled he filed his with the commissioner. present
The clearly distinguishable Schomig case is from Keiser, 189 596 relies, Cal. 550], P. v. [209
226 fraudulent
for in that it was held that the licensee’s case and duties as conduct was unconnected with his activities broker. judgment
The reversed. J., J., concurred. Gibson, J., Edmonds, Spence, C. opinion is CARTER, J. majority based dissent. The it is not upon premise determining appeal that: “In this court of necessary scope by the trial to discuss review v. Exam proceedings (see Dare Medical the commissioner’s Sipper Urban, v. iners, 304]; P.2d Cal. Cal.2d 790 [136 of these 425]), if the record 2d P.2d even [137 proceedings is as if the evidence before commissioner read itself, trial the trial deci had been taken court court’s sion in the evidence.” finds record, and statement is not italicized borne out premise resulted in error has erroneous conclusion. Estate hearing The fact is that at before defendant Real complaint against plaintiff filed upon Commissioner conflict- Humston, one adduced the evidence respects ing some but such facts as were established without dispute conflicting gave inferences. commissioner rise against the conflict concluded that resolved Code, (Bus. Prof. revocation his license warranted. 101771) 10176f, §§ reviewing upon of man- matter an alternative writ
date, superior only transcript court received evidence From this hearing. of the record made at the commissioner’s *11 showing the court conflicting therein, superior record and the revoking plaintiff’s license, concluded that in the commissioner arbitrarily, capriciously contrary “acted that law ’’ evidence, and findings the' unsupported by and order guilty that not consti- “was conduct which of dealing. tuted dishonest ...” fraud judge trial From the am facts convinced the learned justified did, not concluding, in as guilty fraud, dealing, of warrant- dishonest or other conduct Such ing the of a revocation his license as real estate broker. the being of as to record, question the state the the arises power of the trial court to review the factual determination of agency. of an the views question administrative On sharp dis- the of this are in members court have been and
227
P.2d
(See Sipper
Urban, 22
138
agreement.
v.
Cal.2d
[137
Miller,
318]; Dare
Russell v.
It be conceded there question that the sole here is whether involved findings of the trial support substantial evidence nega- majority opinion question court. The answers this in light tive, consider the evidence but fails review and therefrom, from conflicting inferences deducible which evidentiary ample support for such is obvious that there is findings. majority opinion forth haec verba and sets length findings great at of the Real Estate Commissioner determining plaintiff, the facts adverse concludes findings opinion these the evidence. sustained Said findings from trial excerpts also sets forth brief contrary findings court which determined the facts commissioner, and concludes that trial then “the court’s decision finds This statement the evidence.” majority opinion is refuted the record. superior amply supports court’s evidence which findings inferences of which it conclusions, and the reasonably susceptible epitomized as follows: Rattray, than January, 1943, plaintiff for more who California, years operating a real estate broker in been in Bakersfield. associated the firm of Son let- January using letterhead, On a firm he addressed a 19th, Humston, the firm inquiry stating ter of John L. un- certain derstood that Humston owned auto court Mr. they pleased might to sell and that would “be wish you, and enclose acceptable price and terms to receive the *13 ’’ reply. stamped envelope your for Army, sta- lieutenant in the Humston, a second Mr. then stating: “We would February 4th, Ohio, replied in on tioned might is and we the property like to sell this like to sell the mortgage. a ... We would take small second ...” consider fair offer. court and would Kelly listing the Rattray Mr. When discussed with Mr. Kelly Son, in- through Kelly office of & Mr. property the testified: option, saying, an so he procure structed him to many my—due good deal- Rattray “I told that due unsuccessful, ings I had Mr. Humston which were had in troublemaker, he that the manner that was a for option deal be on it and a consid- which would an ’’ paid. eration was Rattray February mentioning 11th that wrote Humston on in buyer (this Taft prospective there was a they purchaser), was not the and that had had ultimate the age property appraised. “Considering He then said: buildings furniture, heavy which has a depreciation, $12,000. a fair would be To this to add we would have the selling commission, presuming we can arrive at mutually satisfactory We enclosing basis. are herewith your option signature. receipt for Upon signed option your reply, proceed closing we will with the work you willing sale. Please state what terms are in the make space marked with the cross. It be that our client will require any should, terms in the but event we would like to quote know what to him.”
This letter and option, form, which was standard optionee, named & Son as were received Hum- Diego. ston at wording San understood the He of the docu- ment and in it following wrote for payment terms $12,000 purchase price, “$10,000 to wit: cash at 8%.” signed He option mailed back to & Son with- By out comment. the terms of agreed Humston sell $12,000. days within 60 Son for
Thereafter, February 20th, Rattray advertised the property in a paper local $15,000; for sale at later it ad- $13,500. vertised at Rattray On March 20th wrote working diligently he had been purchaser find the court way but effecting two obstacles a sale “First, being unrestricted has been been: district might people
objectionable to three who otherwise two objection propérty. second have considered ‘‘ ’’ you this writing price. purpose He also stated: Our $10,000.00 morning you to inquire whether would consider likely cash, prospect who will this as we have now financing . can him. . . property providing we do some you present under conditions would be . . . believe that We offer, accepting providing this cash we able wise you, referred Will arrange financing as hereinabove to. immediately therefore, acceptable know if this will be let us you In the event proceed can with our so we work. likely able to you offer, most would consider we would period you on the sale give definite information within ’’ listing. of our exclusive Following receipt letter, of this Humston was Bak- Rattray personally. ersfield and talked with showed *14 diligently advertisements, promised work him the to on $2,000 another and asked him to reduce the property, this one at Espey to make it easier to sell. About time called Kelly response $13,500 in & Son to the adver- the office only Rattray tisement, cash. does not recall $400 but he had Espey prospective he to Humston as a whether mentioned buyer. rate, April Rattray on 2d at anyAt wrote Humston Diego as San follows: from Bakers- expected you leaving to hear before
“As we any word, wondering having we are field and not received negotiat- you. if The party we have been we misunderstood ing you, telephoned with has us since talked with twice we requesting give him an ... As time is that we answer. our option, pro- like either running short our we would to under property our this endeavoring get ceed with work give you $10,000.00 your for Court financed as to cash so accomplishing in if property, or we should be unsuccessful accept offer, then you willing not this this, or should be pur- another like to our efforts find we would continue you if extend chaser. also like to know ... We would days, we unable provided our for another expires. you We would for before our time consummate deal you by an from ...” appreciate answer wire. letter, Humston this wired: April 6th, response
On fifty net.” “Will take ten thousand seven Rat- day option, April 15th, On the last which was tray by telephone. He told that he could called Humston pay $10,000 cash; only that the anyone find could who way they for them get that amount of was could cash buy property Humston offered sell themselves. Rattray Humston he $10,500. the offer. then stated refused offer Rattray would take cash. asked by wire, buy- Kelly told Mr. confirmed Humston that ing property. thereupon wired, “Will take ten ’’ days. thirty thousand and fifty two hundred net cash within Rattray
Following telephone opened an conversation escrow and to Humston for execution a deed of forwarded property Kelly. to Mr. Later instructions escrow sent. purport documents, Humston understood the these paragraphs fact added two to the escrow instructions imposing specifications certain He that he his own. knew selling Kelly Mr. cash $10,250. However, thought Kelly he testified he Mr. would resell amount give which would him a selling per commission expenses. cent and Instead of this, Mr. whereby consummated arranged a deal cer- financing, procured tain higher profit. and thus Negotiations kept open had prospect been with the Bspey. April 16th, On day after the Mr. purchase, telephoned Bspey, stating they put through a deal $13,500. for him at This deal was consummated. Most of the arranged April details were 16th. Bspey paid on in his $400. Mr. procured private loan from a individual who faith and confidence his recommendation. The money installments, April advanced two 16th and April 30th. This loan was mortgage secured first on the property purchased and also on other owned Bspey. The $700, complete sum of about *15 needed to the transac- tion, represented a mortgage Kelly. second to Mr. The was profit to Mr. amounted of $2,326.25, Rattray to which received $900. some paid Rattray
Humston no commission to or & Son for handling his property. admittedly He knew that a sale and resale contemplated. days April A few after 15th he made a trip to Bakersfield and talked with Mr. Bspey but did not paid property. ask much how he He also Son, called at the of according office and testimony Rattray, you of said: “I don’t folks know what I little it. will a it, out of I am satisfied with
got but ’’ Later few bills. pay some over nine thousand dollars when complaint a with Espey and filed discovered Real Estate Commissioner. hearings that at the before superior court found acting plaintiff was evidence that commissioner therb was no agreed pay agent Humston; that never Humston executed the any plaintiff; that commission to relation- at no time did the February 15th; of that and exist agent of and ever between ship principal and confidence any relationship of trust Humston, nor did handling the transac- of them; exist ever between any constituted guilty of conduct which tion was not or that he did act conduct dealing and fraud or dishonest of his warrant the denial himself in manner which thereof. a renewal for a license application for the conclusion ample afford The facts dealings by Humston’s with relationship created principal that of and not purchaser, that of vendor Blodget, 187 Cal. v. agent. As said the case Smith an agreement permitting P. : “Whether 584] [201 relation certain terms creates person ‘to sell’ land on purchaser under or that of vendor principal agent parties. upon the intention of the depends a contract of sale 114.) Contracts, Where there was (James Option Law § agents real estate a firm of revocable authorization owners, net to the with land for ten thousand dollars sell ten of all said sum of agreement pay over ‘a commission they sell net, ’ said for which thousand dollars consent, in this state that sale our it was held capacity in the effected agreement was firm under this agent not as of the owners vendor on its own account Eldridge Co.,& Easton, Cal. v. (Robinson the land. determining factor 796].) 28 P. Am.St.Rep. 167, [27 right part in and interest that case the direct making persons granted to the proceeds of the sale which contains in the case at bar The written instrument sale. portion shall retain plaintiffs express provision selling price, specified exceeds purchase price giving Smith provision . . . and unrestricted But the broad of one to the owners a net right effect sale at sundry interpreta- susceptible acre is per hundred dollars one the intention presented where tions. . . . The case here
233 language em imperfectly expressed and the parties It interpretation. ambiguous requires and ployed them is to take into consid was, therefore, permissible for the court by the placed upon construction the instrument eration the 2, Roddan, (Mitau v. 149 persons various concerned. Cal. 275, Taking considera 145].) L.R.A.N.S. 84 P. into [6 forth, assignments dealings previously tion the the various set option the in sale conducted the and manner which the was involved, held sufficient persons all the the evidence must be instru ‘that said finding of the trial court grantors ment thereof upon was acted and construed and all and not as parties option to this action as an ” agency mere authorization.’ applied The doctrine of recognized this case has been Mann, in Baron, v. 119]; Ruess v. 217 83 P.2d Cal. [17 Tufts 116 Land Cal.App. 500]; 170 Cook v. La Vina P.2d [2 Co., Cal.App.2d in the P.2d The rule is stated [39 458]. Agency, 13c, page Restatement of the sections 13b and Law of part func follows: “A real sole estate broker whose tion is to find someone who enter into transaction will with ordinarily agent, agreement owner of land is an but the with him fiduciary be such that he has no duties agent. hence is not an in each must be consid facts case ered in determining is understood that whether or not it primary obligation party of one act benefit the other. ...”
Applying looking here to above test and to the facts ascertain the parties, intent it is that there apparent was never part Kelly intent on the & Son to create with principal-agent relationship. Humston a In- deed specific creating both testified to a intent to avoid relationship by taking option. Rattray means of an confirmed Kelly’s testimony in respect, saying response to the question, “Then, you why will state the Commissioner you took option Kelly ? A. The the name Sons& simple got reason that letter when I back from Lt. Hum- ston, listed—my I reply—I letter with his took letter Kelly. Mr. ‘Rattray, Mr. said I me, way will deal with that option—too man is on trouble much past.’ up therefore made and sent it Lt. Humston for signature.”
The testimony of Humston that he as to his intent shows making knew that a sale of the that Kelly it, would resell and that he also knew being quoted at profit, erroneously would make a but he assumed that there was a state law limit profit which would to the same *17 per may amount as a 5 Although cent commission. originally Rattray that he hiring have believed was as his agent property to sell his price obtainable, at the best he could hardly have negotiations continued so believe after the concerning deal, a cash after dickering when considerable price $10,250 cash of agreed upon. was short, the evidence shows than no more that one of parties specific to the transaction had a a intent to create vendor-purchaser relationship, party may and the other inception at the of the transaction had a cre- vague idea of ating a principal-agent relationship, but abandoned this in- tent after dealing length at arm’s relative a cash sale. In such option agreement circumstances the must be construed a pure option, as and nothing more. Rattray
That guilty any not was or dishon- fraudulent dealing procured highest est is obvious. He for Humston the cash property. obtainable for the person No was found buy who any greater on net cash terms for only sum fact, way or at all. In a sale for cash could be through financing Kelly, consummated was efforts of Mr. beyond lay duty which he a would have undertaken as agent. mere selling regular for financing channels $12,500 No lending closed. standard give institution would loan on $13,500 purchase only price, pay- a $400 down ment, customary selling agents nor is it for take second mortgage. unwilling upon Mr. himself to embark was profit so uncertain a deal unless he would stand to make some commission; words, other than in could other he unless a cheap enough purchase make cash he could property, Espey. afford to chance of he financing take the When get $10,250, promptly found he he approached lender, an hav- individual he had been with whom dealings ing twenty-five years, procured for more than $12,500 from him expense loan. He of the double stood transfer, required mortgage and was to take a second secure a portion he to receive amount which this service. All in deal this done order to make a cash which the sum satisfied with professed for Humston who he netted. against arguments be advanced persuasive
While agreements listing using options place practice of that where the law character, it should be cases of its purport understand parties option is used both is con- profit at a that a sale and resale language, and know purchaser relationship is that of vendor templated, the principal agent. and not of to the consideration majority give fails to due opinion cash, and Kelly for property by
details of the payment Espey to make down the sale of it who was able property to selling $400. Humston knew he they Rattray net. He was told financing property, to sell would have do some order asked to advise which was the truth. He never prop- as purchase price to the received for erty. In had received the fact it was none of his concern. He upon the net cash agreed sum of which was facts him, Certainly, view these he was satisfied. *18 Rattray that compelled trial court was to conclude not in connection with guilty was of fraud or dishonest conduct saying equivalent so transaction. To hold would be Rattray that if Real Estate had found Commissioner guilty, compel to re- mandamus would nevertheless lie Rattray’s voke license. majority opinion
The statements which contains several supported by opinion are not states “The the record. Said plaintiff employed evidence shows without conflict that was ’’ [by opinion as broker. then proceeds The Humston] contrary an interpretation clearly of the evidence which is expressed by I to the views trial court thereon. am con- interpretation vinced that placed on the evidence clearly trial court is correct. opinion initiating correspondence states that “The plaintiff
the relation leaves no between Humston and doubt plaintiff that offered Humston his as a broker and services ’ ’ that capacity. Humston retained him that This state- ment is original incorrect. The letter from to Hums- ton, already quoted, which contains no statement from fiduciary of an agency relationship which the creation or implied. contrary, purchase, an offer On it reads as saying that pleased the firm would Humston, to receive from acceptable “The and you, terms stamped enclose envelope your reply.” implied, anything, The letter if that the firm representing prospective buyer, was and would deal with the length. seller at arm’s
The second letter to Humston does speak price” of a “fair to which selling “we would have to add the com- presuming mission can mutually we arrive at a satisfac- tory basis,” obviously but makes a loose use of the term “selling commission,” stating without the amount of that commission stating or “mutually what the satisfactory basis” be, it expressly mentions in places two that an “option” (enclosed signature) required. will be It also ‘ ‘ ’’ speaks prospective buyer of the client, as our no makes reference as a client.
These letters, light considered of the evidence as whole, clearly give conflicting rise to inferences as nature relationship Son, between Humston or Rattray. majority Hence opinion is incorrect in its statement that the indisputably letters “show offered his employed services and purchaser to find a willing acquire and able to the property $12,000.00 plus a selling plaintiff.” commission to Furthermore, even if a sell- ing nothing commission contemplated were there is whatsoever limiting fixing or of that amount commission. Plaintiff’s statement, quoted in the majority opinion, that purpose get listing authority or no to sell the makes respecting listing. concession the terms opinion states also “evidence shows without conflict that employed by once Humston he re- ’’ ported to him a principal. as broker to his does This is but the conclusion of the author of opinion. The inference judge, drawn the trial inference, and it reasonable contrary. to the point At correspondence does the between Rattray, Humston and testimony their telephone as to personal conversations, other than they nego- show tiating to arrive at a at willing which Humston would be *19 sell, price. a cash opinion
Next the states that the “evidence also shows with- out conflict that after purchaser for the secured a property he fiduciary by violated his duties aas broker and misleading untruthful and principal statements induced his price placed upon property reduce and to sell it to the author again This conclusion of plaintiff’s firm.” is but the of and in evidence, my opinion opinion. of the Obviously, relationship. judge, fiduciary the trial no shows made misleading there was no or untruthful statement so, truthfully Humston, Rattray to Humston. He told high that demanding that the Humston was was so advertising buyer found; about cash could be he told Humston high property $15,000; prospective as him of a as he told buyer financing. Mr. help who would have willing arrange financing was not he himself unless buy enough price. It property cash a at low truthfully Espey also uncontradicted that told difficulty. financing Any man have realized sensible would payment $400 down is not sufficient to finance a financing purchase through any ordinary commercial lending channels such banks other institutions. ‘ ‘ Espey [Rattray] day Mr. testified: He told thatme [some- April time before that there some because would be doubt 1st] they of the be payment smallness the down whether night able deal, to finance the I and sat so went home figured showing down approximately purchase, I pay, taking what would be able to that would be the rentals from property I I own and the rentals on this. ... am not again, spoke sure dates I but week more later that [Rattray]. to him He told then me he not been able to get asking Mr. reconsider he was the property and some doubt as to whether or not would be able to let $13,000, suggested me have the I difficulty leave the matter in his hands, and also said some financing—might be a task in order to finance the advance get interest in order through private party, the loan so way.” left the matter in that point At this negotiations, the record shows without conflict if to be Espey sale was made to it could through procuring give private someone who would loan. Mr. and Mr. Simon his office make ar- were able to rangements Espey to borrow from one Ceeearelli. could not obtain loan on at all because had; the small amount of cash which he make he could not all financing Kelly. at without aid afforded Mr. misconception majority opinion basic is its failure recognize profit that in the made Mr. on the two overreaching transactions there was no evi- Humston. The *20 only judge’s not supports denee the trial conclusion to this effect; possible. Rattray it shows that no other conclusion is any was unable effect $10,250; sale for cash for more than the only accept Rattray cash. could not even effect the cash until he sale found some channel through might a resale Kelly. Hum- made Mr. profit ston’s erroneous belief that a transaction of this kind, any or on sale real agent, estate is limited to selling of 5 per Rattray. commission cent was not known fixing There is agent may no law the commission which an charge per at 5 cent and no more. In fact the custom of charging per not less than 5 protect cent is more to brokers under-cutting from than it is a customary to establish maxi- Furthermore, financing mum rate. in services rendered performed not gratis, but are generally compensated by a commission. Rattray Humston admitted that he never offered any whatsoever, commission and also that he he was knew selling Kelly contemplated. and that a resale was When he Espey met he did not ask paid even how much he property. point On thought this he testified: “I & Kelly Son making right. the deal for me—that it Why was all should arpund go somebody I ask about the deal or how much they Kelly sold it for. I had they confidence Son that Q. satisfactory Why deal. you any made didn’t at time Espey ask paid Mr. what he had property? I why A. That is the time ever talked to him—no reason Q. Now, you any I have. . . . should did at time ever ask Mr. Kelly Rattray or Mr. what their transaction was with Mr. Q. Espey? you No. any A. Did ever at time ask Mr. you or Mr. Rattray portion to refund to profit your Q. they made on transaction ? I you A. never. Did ever any pay at time ever offer Mr. or Mr. handling commission for the of this transaction? A. never.” Furthermore, according Rattray, Humston said him after you got am it, the sale: “I don’t know what folks out of but I Espey it. .” pay satisfied with . . Likewise never offered to selling financing. either or the commission for implies majority opinion chicanery that there was some “completed reason fact that the deals were ’ ’ respect same All that the record shows is that escrow. gave the number both trans- company the title same escrow and the However, separate two sales were effectuated actions. Kelly. 16th, expenses paid by April It not until Mr. in escrow. expired, Espey put $400 after the instructions, and it parties gave separate escrow Each im- It is completion month for all details. took over a proceeds of loan that Mr. used the material Humston, procured himself payment for he for his procured Espey. by Espey, from loan; was light opinion majority that “in the The statement testimony, plaintiff’s documents and own the uncontradicted fiduciary questioned it cannot be violated the ”, *21 of the agent of a real estate . . . is but conclusion duties fiduciary agency writer, relationship or was established. no established, specifically, If or relationship such a had been more relationship judge that if the trial had chosen to infer such existed, majority opinion in be then cases cited relating necessity full point, particularly to the of a those they inapplicable. disclosure. No stands, As the record cited, support mention is made of the cases hereinabove which holding here announced. conclusion, any The “Nor that plaintiff doubt purchasing Humston Espey had known fact was [that ’’ $13,500], Son, property Kelly he would not have sold the & to [Rattray] only “He and that failed disclose the truth to misrepresentation but made the that he was unable to sell the price placed upon Humston,” simply by at it ignores the uncontradicted fact that did Humston know contemplated, higher being a resale was and that a was asked, that it was and the truth that could not price paid sold cash for more than the Humston. majority statement, findings The “The of the trial court no acting that there was evidence that was as Hum- agent clearly documentary is so ston ’s inconsistent plaintiff’s testimony evidence as well as it can be own only being explained upon theory that, as based since plaintiff’s option purchase firm had an did length property, could deal with Humston arm’s at ’’ fiduciary justified. duties, not bound is not and was already stated, bearing question As the evidence on the whether fiduciary agency relationship susceptible there an was conflicting inferences trial drawn inferences justifiable, reasonable, true, It is court are conclusive. majority opinion goes say, broker can be agency,” given which “concurrent with the runs fiduciary relation, duty and a case there is a such full disclosure. But here there is sufficient conclusion option only given that an agency. was there was no (cid:127) The cases cited the majority opinion are therefore not controlling. opinion majority then Espey states that “The fact that only
had $400.00 cash greater therefore part purchase price had to be covered loan affords plaintiff’s excuse for conduct. standpoint From the of the Espey seller buyer was as much a cash as one who did not need loan. It Humston was immaterial to whether the cash came from purchaser’s own funds or he whether secure from a Espey lender. Since & Son’s sale resulted in the receipt $12,800.00, bf approximately it is cash clear that Humston gained would have more from a sale Espey than the again one to Son.” This statement misconception shows the basic From the author. the stand- point seller, Espey prospect, was not even a for he had no cash pay. nothing There plaintiff’s conduct He truthfully excuse. disclosed to Humston that he towas Kelly, sell financing and that some would have to be done for the next purchaser, and understood that Rat- tray’s remuneration profit would come out of whatever made on the resale. thing that aroused Humston’s ire profit was that the 5 per more than the cent he erroneously may have inferred it would be. He has never claimed did not *22 receive the full cash which agreed. may It noted be too that not in did fact consummate purchase until the (or listing, if it be denominated such) as had expired. receiving $10,000 Instead of cash and payment on a deferred in provided option, as the Humston received as the full of the property. uncertainty agreement. There is no as to this It was subject the telephone of a Rattray conversation between and Humston, and Confirmed Humston wire. At the time agreement this was made, purchaser had been found who pay $10,000 except cash for who was able to finance the property. resale of the From these facts trial court acting concluded that was not in the capacity agent of or broker for acting but was and on behalf of purchaser who property. was the of By reversing judgment of the in trial court this case the majority disregard this court all conflicts in the evidence
241 evidence all and from the and draw inferences deductions in plaintiff. adverse The rule that all intendments reason judgment favor of the of the trial court and that all able be from the inferences deductions should drawn entirely disregarded. support judgment in of the evidence is in clearly forcibly This has been so stated recent rule two quoting decisions of court that I cannot refrain from majority Bristol, opinions from the therein. In the Estate of said; 221, 23 689], Cal.2d 223 P.2d the court “The rules [143 evidence, weight evidence, be to the accorded province reviewing of a in court, are the con same will any (Estate (1910), test as in other civil case. Snowball 157 Cal. 69 ; (1924), P. Estate Barr [107 598] Cal.App. 16, 33 181].) province P. The rule as to our is: [230 ‘In reviewing the evidence ... all conflicts must be resolved in favor the respondent, legitimate and all reasonable indulged inferences in uphold possible. if It the verdict elementary is an . . principle . law, when verdict being attacked unsupported, power as appellate begins court and ends with a determination as to whether any there is substantial evidence, contradicted or uncontra dieted, which will jury. the conclusion reached When or reasonably two more inferences can be deduced from facts, reviewing court power is without to substitute its added.) (Italics deductions those of the trial court.’ (Crawford (1935), v. Southern Co. Cal.2d Pacific 183].) P.2d quoted applicable rule reviewing [45 is as findings of a judge considering as is when jury’s verdict. The critical word definition ‘substantial’; it is a door which can lead readily practical abuse as to enlightened or justice. knowledge It is common among judges lawyers many eases are determined to the entire judges satisfaction of trial juries, on their issues, by factual evidence overwhelming which is persuasiveness its but may appear relatively unsubstantial—if it can re flected at all—in phonographic Appellate record. courts, therefore, if there be reasonable doubt sufficiency toas of the evidence sustain finding, should resolve that doubt finding; favor searching and in explor the record and ing inferences which arise from what is there, found to discover whether exists, such doubt or conflict the court *23 should Upon be realistic practical. and such view of the law we cannot hold finding essential in this case is unsupported.”
242 Rule, the Estate 25 1003, Cal.2d 1 155 P.2d [152 1319], interpretation
A.L.R. which involved the of a contract payment of a broker, commission to a real estate page is, however, court said at 10: “The fact that the trial undoubtedly it court had before and did consider evidence of surrounding circumstances, including the Brownscombe letter, yet respondent determined that broker was entitled And, commission. findings his earned the absence of of law, every fact and conclusions intendment is in favor of judgment appealed from or order presumed it is every essential to fact or inference the order by by (See warranted evidence found the court. (1942), 849, Haime v. Beaulieu 20 de Cal.2d 852 P.2d [129 345]; Lines, (1942), Bekins Van Inc. v. Johnson 21 Cal.2d ; 137 135, (1927), P.2d 85 Cal.App. Estate Shaw [130 421] 351]; 852, 499; 10 P. Cal.Jur. Cal.Jur. § [260 62.) light conflicting Whether, in the inferences to be § evidence, parties by from the drawn their contract intended payment respondent provide of a commission for past yet services—which matured into a confirmed hence, which, sense, sale and one were services course of securing Willig prospective pur rendition—in as a bidder chaser, contemplated payment only, future services may the trial and its decision for the determination of court on appeal. not be interfered with us The rule is that an accept ‘appellate interpretation court will or adhere to the adopted the trial court—and not substitute [of contract] parol its . . . where evidence was intro another of own— ... interpretation, in aid its such evidence duced ’ may conflicting inferences be drawn therefrom. such that rev.) §192; (4 10-Yr.Supp. (1943 146-147, see also Cal.Jur. Certainly 549.) 934-939, inferences be drawn Cal.Jur. § surrounding here and the circumstances from the contract finding presume support the which we must trial relative the intention of the con made court tracting parties.” trial in the case at bar had that the court circumstance transcript of proceedings and evidence
before change Real Estate does not taken before the Commissioner trial respect to the function court in the rule with facts, questioned as it cannot be that under determining trial system jurisprudence court is the forum for our of fact whether those issues of issues the determination *24 by ocular testimony or way or oral of written presented a dif- case, we would If were not such observation. in the form submitted respect to evidence ferent rule of oral form than received affidavit deposition or under all It clear that observation. testimony ocular in the deter- the trial court the function of of the authorities regardless of form the facts is the same mination of presented. evidence which the convincing clear, positive, and sub- my there is opinion
In the find- in this case to the record stantial evidence judgment based thereon should ings trial and the court be affirmed. Schauer, J.,
Shenk, J., and concurred. rehearing denied June Respondent’s petition for 1946. rehearing. for a Carter, J., Schauer, J., voted
Shenk, J., May 24, A. No. 18870. Bank. [L. 1946.] CROUCH, BEN CROUCH Appellant, EDITH M. v. E.
Respondent.