84 P. 1007 | Cal. Ct. App. | 1906
The plaintiff seeks herein to recover from the defendant the sum of $625 for services rendered by Guy T. Wayman, his assignor, as the agent of the defendant for the sale of a parcel of land in San Francisco. Judgment was rendered in favor of the defendant, and the plaintiff has appealed.
The facts as shown at the trial are that on October 14, 1902, the defendant, by an instrument in writing, employed Way-man as his sole and exclusive agent for the period of twenty days from that date to sell for him a certain parcel of land for the sum of $50,000, and at the same time executed to him another instrument, by which he promised to pay him a commission of one and one-quarter per cent of such purchase price if the property should be sold in accordance therewith. Wayman did not make a sale within said time, but on November 7th he negotiated with Knickerbocker and Barker for a purchase of the lot by them, and received from them $500 as a deposit therefor, and on the same day stated to the defendant that he had sold the property to them, and presented to him an instrument signed by himself stating that he had "received from Knickerbocker $500, being a deposit on account of $50,000 for purchase price of property this day sold to him by Guy T. Wayman, agent of the owner, herein described, and subject to owner's approval"; the property described being that of the defendant. Being asked by the defendant how much he would get, Wayman replied $50,000. The defendant thereupon signed an approval of the sale at the foot of the receipt, and Wayman gave to him the $500, for which he gave Wayman his receipt as a deposit on account of the purchase price. The sale was thereafter carried into effect, and at its consummation Knickerbocker and Barker paid to the defendant $49,500. At the time of Wayman's negotiation with Knickerbocker and Barker he agreed with *258 them that, if the sale was effected, he should receive from them $500 as a commission for his services, and when the sale was completed, they paid him said $500 as said commission. Wayman, however, did not inform the defendant of this agreement, and the defendant did not learn of it until several days after the execution of the instrument of November 7th.
Upon these facts the court rightly held that Wayman was not entitled to any commission from the defendant for services rendered in connection with the sale of the property. The fiduciary relations between a principal and his agent preclude the latter from having any interest in the subject matter of his agency adverse to that of his principal. In the employment of an agent the principal bargains for his disinterested skill and diligence, and, whenever the interests of the agent become antagonistic to those of his employer, he violates his obligation by continuing to act in his behalf without disclosing that fact. A broker, who is employed by the owner to sell his property, is, by the mere fact of accepting such employment, precluded from acquiring an interest in the property he is employed to sell. He cannot act as such agent in making a sale either to himself or where he is interested in the purchase, and he is equally precluded from having a personal interest in the result of the sale of which his principal is ignorant. Whenever he has an interest in making the sale which is antagonistic to that of his principal, he is unable to discharge his full duty to the latter, and by continuing to act as his agent, without disclosing to him the fact of such interest, he commits a fraud upon him which will deprive him of all right to compensation for his services. These principles will be found fully illustrated in the following authorities: Story on Agency, secs. 31, 210, 211; Mechem on Agency, sec. 952; Farnsworth v. Hemmer, 1 Allen (Mass.), 494, [79 Am. Dec. 756]; Rice v. Wood,
The fact that the defendant did not set up in his answer as a defense that Wayman had received a commission from the purchaser did not preclude him from offering evidence thereof, or the court from considering its effect. The only allegation in the plaintiff's complaint showing a liability of the defendant was that, within two years prior thereto, the defendant became indebted to Wayman in the sum of $625 for services rendered by him to the defendant, at his special instance and request. As this allegation gave no information of the nature of these services, the defendant could not anticipate the facts upon which the plaintiff would rely at the trial, and had no opportunity to present the issue upon which he offered the evidence until after the plaintiff's evidence had been introduced (Sterling v. Smith,
For a similar reason the proposition of appellant that the findings are insufficient to support the judgment, upon the ground that the principal finding is merely a conclusion law and not a finding of fact, is untenable. The finding is negation in identical language of the allegation of the complaint. The only purpose of findings is to answer the questions put by the pleadings, and if the facts are stated in this findings in the same way that they are stated in the pleadings they are sufficient. (Dam v. Zink,
In his notice of motion for a new trial the plaintiff named as one of the grounds thereof "accident or surprise which ordinary prudence could not have guarded against," and specified the surprise to be the claim by the defendant that the acceptance by Wayman of a commission from the purchasers was a defense to the action; that such defense was not referred to in the answer, and was first made in the briefs by counsel after the evidence had been closed and the case submitted for argument. In support of the motion he filed affidavits tending to show that Wayman had received such commission with the knowledge and consent of the defendant. A sufficient reason for not having set forth this defense in the answer has already been given, but, as it evidently appeared to the superior court that, whatever may have been the surprise of the plaintiff, it could have been guarded against by ordinary prudence, it very properly denied the motion. It appears by one of the affidavits offered in reply to those on behalf of the appellant that the plaintiff's counsel was informed several months before the trial that the defendant took the position that Wayman was not legally entitled to recover a commission from him, for the reason that he had received a commission from the purchasers of the property. The cause was tried May 22, 1903, and on May 27th the defendant's brief was served upon the plaintiff, in which this defense was relied upon, and the cause was not decided until September 3d. If the plaintiff had been surprised at this defense and felt that he could overcome it by contrary evidence, he should have moved then, upon this ground, to set aside the submission of the cause for the purpose of introducing such evidence, and not taken the chance of a decision and reserved his motion to be made in case it should be against him. (Ferrer v. Home M. Ins. Co.,
The affidavits tending to show that the defendant consented that Wayman might receive a commission from the purchasers were by Wayman and Chapman, both of whom were witnesses at the trial and could then have been examined in reference thereto. These affidavits were, moreover, directly contradicted by the affidavit of the defendant in his counter-affidavit replying thereto. The court was justified in refusing a new trial, unless it was satisfied from the affidavits that a different result would be reached (Hayne on New Trial, sec. 85;McGuire v. Drew,
The judgment and order denying a new trial are affirmed.
*263Cooper, J., and Hall, J., concurred.