165 P. 436 | Cal. | 1917
Plaintiff sued defendant, Maria Encarnacion de Sepulveda Settle, to recover his commissions as broker for services which he had rendered in the sale of *132
certain of defendant's land. The other defendant is the husband of Maria Encarnacion, married to her after the consummation of the transactions forming the basis of this litigation. At the conclusion of plaintiff's evidence defendants moved for a nonsuit upon "the general broad ground of insufficiency of the evidence to justify the decision and that the plaintiff's evidence showed moral turpitude." The court granted the nonsuit upon the ground that "the plaintiff had failed to prove a sufficient case for the jury, and the evidence introduced was insufficient to support a judgment for the plaintiff." The court's power to grant a nonsuit has been so often discussed, the limitations of that power so often declared, that it should be necessary to do no more than refer to Estate of Arnold,
Touching briefly upon the law, no question arises but that the power of attorney held by Mr. Mahar was amply sufficient to authorize him to do everything which in fact he did do. But in addition to this is the evidence (unnecessary to establish the legality of Mr. Mahar's conduct, but standing undenied, as it does, persuasive of fair dealing), that Mrs. Sepulveda was fully advised of and fully assented to the principal transaction. Mr. Mahar, under his power of attorney, had the authority to enter into the contract with Mr. Stieglitz for the payment of this commission. The uncontradicted evidence is that he did so enter into it with the knowledge and approval of his principal. It was equally within his power to cure the defect of the parol agreement by subsequent *135
ratification in writing, which was done and made. (Civ. Code, secs. 2307, 2310.) Touching Mr. Stieglitz' position and conduct, there is absolutely nothing shown in the evidence which would forbid him, on either legal or ethical grounds, from entering into a contract with Mrs. Sepulveda which had no bearing on or relation to his position as her attorney at law in the partition suit, especially so as in the making of the contract he did not even personally see her and so could not have personally influenced her, and the explanation of the contract was made by and her assent given to her trusted agent and man of affairs. An attorney is under no actual incapacity to deal with or purchase from his client. All that is required where the relation of confidence exists and where the questioned transaction has a bearing upon that relationship is a clear showing that there has been no abuse of confidence and no advantage taken. (Felton v. Le Breton,
In support of this judgment given on nonsuit respondents seem to place reliance upon certain testimony given by Mr. Mahar to the effect that he understood that he and Mr. Stieglitz were to divide the commission, and that he thought he and Mr. Stieglitz might as well make a commission upon the sale of the property as anybody else; and also upon the fact that after the sale Mr. Peck insisted on giving him — Mr. Stieglitz — five hundred dollars, which he refused to take, telling Mr. Peck that if he wanted to give this money, to draw his check for that amount to Mr. Mahar, which Mr. Peck did, and that subsequently Mr. Mahar insisted upon Mr. Stieglitz taking half of the amount. As against this, however, is the positive testimony of Mr. Stieglitz that there had been no previous agreement between himself and Mr. Peck, or between himself and Mr. Mahar, concerning the five hundred dollars, and that he never had any agreement with Mr. Mahar by which he — Mr. Mahar — was to receive any part of the commissions for the sale of the land. To sustain the *136 nonsuit it would have to be said as matter of law that this evidence to which we have last adverted absolutely destroys all the force and effect of the rest of the evidence in the case. But this manifestly is not so. The most that can be said of it is that it is evidence tending to impeach the fair dealing of Mr. Mahar with his principal. It does not at all affect the legal rights of plaintiff as above set forth.
The judgment appealed from is therefore reversed.
Melvin, J., and Lorigan, J., concurred.