91 P. 487 | Or. | 1907
■Opinion by
1. It does not appear by any express averment of the complaint what were the terms of the agreement, if any, between plaintiff and defendants, under which plaintiff claims they jointly bought the property. Whether they were to contribute equally towards the purchase price, and share in the same proportion the advantages of the purchase, or whether one should contribute more than the other, and a different division of the fruits of the transaction be made, is not alleged; but there is the bare allegation that they agreed to jointly purchase a tract of land. But from his subsequent averments it seems to have been assumed by the pleader that the plaintiff was to have an equal advantage with defendants, and that there was to be a division in proportion to the amounts contributed by each toward the purchase price of the land. Hence it is alleged, in effect, that defendants, in making the partition, broke their agreement and by fraud and deceit have obtained an unfair advantage over 'plaintiff and deprived him of his proportionate share of the land. Assuming that such was the issue framed by the pleadings, we are of the opinion that the plaintiff has not sustained that issue by that preponderance .of clear and satisfactory proof that a court of equity always requires to establish fraud upon another. Plaintiff not only has the burden of proof of the issue, but the charge must be proved by clear and satisfactory evidence. In such a case the degree of proof required is, perhaps, enhanced by the reason of the latitude allowed in admitting evidence to prove fraud: Freeman v. Topkis, 1 Marv. (Del.) 174 (40 Atl. 948). “A party, therefore.
2. Plaintiff has endeavored to bring himself within the case of Kroll v. Coach, 45 Or. 459 (78 Pac. 397: 80 Pac. 900), where it was held that a person having exclusive information relative to a proposed purchase, offering others an opportunity to take an interest and share the anticipated advantages on equal terms with him, is bound to act with entire truthfulness and good faith toward them in the matter, and if he derives a personal gain by deceiving them he is accountable as a trustee ex maleficio, on the legal theory that such person thereby assumes a relation of trust and confidence towards the intending purchasers. Opposed to this theory is the contention that the parties were dealing with each other at arm’s length and as strangers to any fiduciary relation. In that case neither of the-parties were in the business of real estate agents, but they were seeking to jointly buy from another for their own advantage. The facts of this case are that early in the year 1903 plaintiff came to the Town of Medford, seeking a new home, and wishing to invest in timber lands. He there became acquainted with defendants, who were partners in a real estate business, and to whom he disclosed his intentions. They had shown him different pieces of property which they had for sale as agents for others; but, none of these suiting plaintiff, they suggested to him the Donegan tract, which they had for sale, comprising 2.105.82 acres, and consisting of four separate tracts situate in the same vicinity. This land belonged to one Dickinson, a nonresident of Oregon, who had come into the ownership of it
Plaintiff further testified that White then proposed to him: “What is the matter with our buying it together?” To- which plaintiff replied: “My money is pretty well tied up back East. I don’t know as I can.” That White then said :■ “If you want to go in with us, we will let you in on the ground floor. We
“$150.00. Jacksonville, Oregon, Mar. 19, 1903.
Beceived from John F. White and William Scott the sum of one hundred and fifty dollars, which sum of money is accepted under the following conditions: If the said White and Scott shall, within a period of sixty days from this date, time being the essence thereof, pay or cause to be paid to me the full sum of $6,850, I agree to make, execute, and deliver to them a good and sufficient deed for the 2,105-acre tracts of land in Jackson County, Oregon, known as the ‘Donegan Tracts,’ and now owned by me. I agree that in case I am unable, within 60 days or at the time the said $6,850 is tendered to me, to have the title clear and free from incumbrances, that I will refund the said sum of $150 to the said White and Scott; biit in case default should be made in the tendering of the sum of $6,850 within the said 60 days from this date, time being the essence thereof, then the said $150 shall belong to me and be my property, and shall be considered as liquidated damages to me. It is understood by the said White and Scott that the premises are under lease to S. F. Godfrey.”
It is claimed that plaintiff then, through White’s assistance, made arrangements to borrow from a local bank the amount of money he might need. Before the expiration of the 60 days plaintiff and defendants agreed to divide the land between them, the former to take 1,365.82 acres in one body, and the latter to take 740 acres, which was in three separate and detached parcels. When the time came to pay for the land, plaintiff handed White his check for $4,467, which, together with the $75 initial payment, made $4,542 for his share of the land, at the rate of $7,000 for the entire tract; but defendants in fact paid to Hazen at Portland no more than $5,000 for the entire
The decree should be reversed, and one entered here dismissing the complaint. Reversed.