125 Wash. 565 | Wash. | 1923
The plaintiff brought this action to recover from J. E. Zickrick and W. W. Black the sum of $10,000, which it is alleged that the Sunset Copper Company was entitled to because of claimed concealment and misrepresentation of the purchase price of certain mining property. The fund in dispute, or a
Tbe facts are somewhat involved, but may be summarized as follows: On March 9, 1916, and for some time prior thereto, W. W. Black and Frank L. Bell were tbe owners of certain mining property, situated near Index, in Snohomish county. Bell was a non-resident of tbe state and Black acted for him in dealing witb tbe property by virtue of a power of attorney. W. R. Scott, George H. Stevenson and tbe respondent, J. E. Zickrick, desired to purchase this property, or an option upon it. Scott advanced $1,000, and Zickrick, witb this money in bis possession, went to Black for tbe purpose of making a contract witb reference to tbe, purchase of tbe property. On this occasion, Zickrick, for tbe $1,000, purchased an option upon tbe property and received a receipt therefor which specified tbat tbe purchase price was $100,000. At tbe same time, there was delivered to him this writing: .
“Whereas, tbe undersigned, W. W. Black, gave a receipt to J. E. Zickrick for One Thousand Dollars ($1,003) for an option on tbe Sunset property for tbe price of One Hundred Thousand Dollars ($100,000),
“Now, therefore, it is agreed that tbe real price is Ninety Thousand Dollars ($90,000) to Zickrick, tbat anything in excess of Ninety Thousand Dollars ($90,-000) is to be paid to J. E. Zickrick.
“Dg.ted this 9th day of March, 1916.
“W. W. Black.”
On the 3rd day of May, 1916, the contract of purchase between Black and Scott was superseded by a separate contract between Stevenson and Bell for the latter’s interest in the property, and another contract between Stevenson and Black for his interest in the property. On the 5th day of October, 1916, another contract was 'entered into covering the matter of the subsequent payments. On the 2nd day of May, 1917, Zickrick sold and transferred his entire interest in the contract and property to Stevenson for the sum of $10,000. It should be noticed here that this $10,000 is not the subject-matter of this action. Some time subsequently Stevenson and Scott assigned and transferred all of their interest to the Sunset Copper Company, a corporation, one of the appellants.
There are a number of questions discussed in the. briefs, but the law of the case appears to us to be not very difficult, even though it is not easy to state the facts ■‘vith clearness.
The controlling question is whether the release of Black was a release of the action against Zickrick, a joint ';ort feasor. The rule is that the acceptance of money in satisfaction of a claim against one joint tort feasor, with a reservation that it shall not be considered as a release of another joint tort feasor, operates
It cannot be doubted that, when Zickrick represented to Stevenson and Scott that the “bed rock” purchase price of the property was $100,000, instead of $90,000, and did not disclose to them the secret agreement by which he was to receive the difference between the $90,000 and the $100,000, he was committing a fraud upon them. Where an agent is employed to purchase property at a certain price, or the best price possible, and he enters into a contract for its purchase at a greater price whereby he is to be benefited at the expense of his principal, he is guilty of fraud in the misrepresentation of the purchase price. Hindle v. Holcomb, 34 Wash. 336, 75 Pac. 873; Packard v. Booth, 62 Wash. 333, 113 Pac. 774; Stewart v. Preston, 77 Wash. 559, 137 Pac. 993.
Zickrick, in taking the secret agreement by which he was to be benefited to the extent of $10,000, was committing a fraud upon Stevenson and Scott. As already pointed out, Black, when the contract of-purchase was made between him and Stevenson, assured the latter that the purchase price was $100,000. The arrangement between Black and Zickrick was such that we think the release of one operated as a release of the other, under the rule above stated with reference to the effect of the release of one of two joint tort feasors.
This disposes of the case except as to the $1,500 which was paid the interveners. As indicated, Zickrick, prior to the time when he sold and transferred his interest to Stevenson, had made some kind of an assignment to those who intervened in the action. The assignment from Zickrick to Stevenson, it appears to
The judgment will be affirmed.
Fullerton, Parker, and Tolman, JJ., concur.