63 W. Va. 603 | W. Va. | 1908
Joseph W. Thorne, an associate of John W. BroAvn, Jay Reefer and W. P. Goff, in a brokerage contract for the sale of coal land in the year 1903, brought this suit in the circuit court of Harrison county, for the purpose of setting aside a contract, bearing date October 22, 1903, by which he had disposed of his prospective share of the commissions on the sale to said Brown, in consideration of $600.00 in cash and $1,400.00 to be paid thereafter upon certain conditions. His original and first and second amended bills charged Brown Avith fraud in the procurement of said contract, consisting of the suppression and concealment of certain information to Avhich the plaintiff was entitled and affirmative acts of misrepresentation concerning material facts pertaining to the subject matter of the contract. At the time of the institution of the suit there Avas, in the hands of W. P. Goff, the sum of $4,625.00, one-fourth of the commissions, to which Thorne Avould have been entitled, but for his contract of sale thereof to BroAvn, and Avhich Brown claimed.' Goff was enjoined from paying it over to Brown and it Avas afterwards paid to the general receiver of the court under an order made in the cause. The court, in its final decree, canceled and set aside the contract and adjudged the fund to Thorne; and, having alloAved the receiver commission on the fund amounting to $259.60, and required repayment to BroAvn of the $600.00 Avhich he had paid to Thorne, then amounting, with interest, to $688.00, directed the receiver to pay out of said sum the costs of the suit, including the commissions of the receiver, and then pay the residue thereof to Brown. Having then ascertained that there still remained in the hands of the receiver $4,503.62, the court ordered him to pay it to Thorne. From this decree, Broivn has appealed.
The record contains five or six hundred pages of testimony. It would be a burdensome and useless task to undertake to detail it all here. Only enough, therefore, will be set forth to indicate the character of the transaction out of which the subject matter of the suit arose, and the substance of the contentions as to specific acts of fraud charged. Thorne and Reefer had been partners as real-estate agents or brokers at Clarksburg. As such, they obtained from Adolphus Armstrong and John H. -Kunst authority to sell- the coal in a tract of 1200 acres of land. Brown, knowing certain persons desired to buy a tract of coal land, called upon Reefer and Thorne and it was agreed that he should furnish a buyer for this tract of land at the price of $210.00 per acre, and, as the
Difficulty was found in effecting- an agreement with the Baltimore & Ohio Railroad Company for apportionment and supply of cars and with McGraw for the purchase of his railroad and certain surface land demanded by the coal company. On the 20th day of October, 1903, the Maryland Coal Company ap
As McGraw resided and did business at Grafton, the negotiations were carried on at that place and Reefer, Brown and Goff made frequent trips there all through the summer and fall of the year 1903, sometimes negotiating with McGraw alone and at other times with him and the representatives of the coal company. Numerous meetings of the brokers occurred at Clarksburg, where they resided, and generally at the office of Reefer and Thorne. Thorne attended these meetings until about the last of August. After that date, according to his testimony and that of Reefer and others, he
That Brown did intend, at a time when the whole matter was in a state of .doubt and uncertainty, to turn such exclusive information as he could get to his individual advantage, is disclosed by certain letters he wrote to an attorney of the Maryland Coal Company. These letters evince, not only intention to take advantage of somebody connected with the property, but also suggest knowledge on his part of weakness in some person from whom he expected to obtain it. The first of these letters was written October 14, 1903, when he knew the directors of the coal company would soon meet to consider the traffic propositions made by the Baltimore and Ohio Railroad Company. In it he said: “If you will wire me the fact as soon as 3mu are assured beyond doubt that the deal on the McGraw coal is closed or will be, so that 1 am safe in advancing money on that fact, I can make you $300.00 in addition to some for myself by legitimate manipulation, unless I am very much mistaken in the temper of some parties. On receipt of your wire, I will apprise you of the result within twenty-four hours. ” The attorney declined the proposition, but said: “I am advised that our people meet on Tuesday next week, 20th inst., to consider the proposed B. & O. agreements and to decide whether to accept or reject them.” On October 11, 1903, Brown followed the matter up in the following terms: “As to the information I ask for on the 14th aside from wanting it in advance, you know I am an interested party and should by right have this information as soon as it is known by any other connected with the deal. So there is no room for complaint if I get it “a day ahead.” The directors met three days later, and approved the B. & O. agreements, subject to the making of satisfactory arrangements about the Sand Lick branch road, and Brown was apprised of this by a telegram on the 21st. On the 22nd he procured his contract from Thorne, and did not disclose the fact to either Reefer or Goff for some time
In view of the proof of intention and design on the part •of Brown to take advantage of some of his associates and the •fact that he did obtain an advantage of Thorne, and that Thorne’s “temper” at the time of the correspondence between Brown and the attorney was apparently such as to make him an easy victim for Brown, we cannot say the circuit court erred in resolving the doubts against him arising •out of the conflicting evidence touching details of the negotiations between them. This disclosure plainly shows a declaration of specific intent to do what he is charged with having done. Having received the information he wanted, there is no suggestion on his part of any use he made, or intended to make, of it, for the common benefit of himself and his associates. Besides, his written declarations show intention to use it for his own personal benefit, and it is difficult to .see how he could have turned it to his personal advantage through anjr person other than an associate. To the detriment of what other person could he have used it? McGraw? Not likely, since he held the key of the entire situation. 'Though inadequacy of price alone, under all the circum.stances disclosed, tending to show uncertainty as to the -amount Thorne would realize from the commissions, might not be sufficient to establish fraud, and although we might conclude that some of the controverted matters of detail .should have been found in favor of Brown, on the theory that ■the circumstances corroborate him and sustain his statements, we must assume that the circuit court based its finding upon consideration of all the evidence and all the circumstances disclosed; and, upon consideration of the entire evidence, we are unable to say the finding is wrong. On the •contrary, it seems to use that Brown’s conduct in the matter was not characterized by the fairness and frankness that «ought to obtain between partners or principals and agents.
There is no controversy as to the legal principles applicable to cases of this kind. The onl5r contention is that Brown did not abuse or take advantage of the confidential relation subsisting between him and Thorne, and which he was bound under the law, to respect. It is unnecessary, therefore, to discuss or elaborate upon the principles declared in McKinley v. Lynch, 58 W. Va. 44, Newcomb v. Brooks, 16 W. Va. 32, Liskey v. Snyder, 56 W. Va. 610, and numerous decisions of other courts referred to in the briefs. By virtue of the relationship subsisting between the parties, whether we say they were strictly partners or not, Thorne was entitled to all the information Brown possessed relating to the subject matter of their dealing. If we say they were mutually and reciprocally principal and agent, all the information obtained by the agent belonged to his principal and he could not use it as a means of benefitting himself at the expense of his. principal. The element of agency involved in a copartnership imposes upon each member a high degree of fairness and good faith to his associates. Under the law of agency, all of his knowledge and information of the partnership business, property and rights, belong to his associates as well as to himself, and his concealment thereof in transactions between themselves, working injury and detriment to them,, amounts to fraud.
No ground upon which the appellant can be relieved from the payment of the general receiver’s commission is perceived. Goff, a defendant, was permitted, on his request, to pay the fund in controversy to the receivef. It was the subject matter of the litigation and the issue was, not one of mere
Seeing no error in the decree, we must affirm it.
Affirmed.