62 Wash. 329 | Wash. | 1911
The respondent brought this action against the appellant to recover money obtained from him through fraud and deceit. In his complaint the respondent alleged that on or about May 24, 1909, he employed the defendant as his special agent to go from the city of Seattle, in the state of Washington, to the city of Portland, in the state of Oregon, and there negotiate with and purchase from the owner, for the lowest price for which the owner would
On the trial the respondent’s evidence tended to prove the allegations of his complaint. It developed, however, that the appellant, at some time prior to the date he accepted employment from the respondent, had entered into negotiations with the owners of the personal property for the purchase of the same, and had secured an option to purchase it, expiring January 1, 1909, for the sum of $8£5, payable $600 in cash and the release of a claim which the appellant had against the owners of the property for $££5, and that the appellant on reaching- Portland and securing the money from the re
The principal contention on the part of the appellant is that the respondent has mistaken his remedy. He argues that, conceding there was fraud practiced upon him by the appellant, he had, on its discovery, a choice of three remedies: (1) he could rescind the contract, return the property to the appellant and sue him for the purchase price paid; or (2) he could retain the property and if its value was less than the sum paid for it, recover the difference between its value and the price paid; or (3) he could recover the difference between the price paid the appellant for the property and the price paid by the appellant to the former owners, if the property was purchased by the appellant for himself after he became the respondent’s agent for the purpose of purchasing it for the respondent. He argues, further, that the respondent is estopped to recover on the first ground stated, because he did not offer to return the property; that he cannot recover on the second ground because he failed to prove that the value of the property was less than the sum he paid for it; and that he cannot recover on the third ground because it was not shown that the appellant purchased the property after he became the agent of the respondent.
In answer to the objections it is not necessary that we notice the first two remedies suggested, as it is evident that the respondent has based his right of recovery on the last ground suggested. On this ground we'think his right of recovery plain. The appellant was not the owner of the property at that time. True, he had an option entitling him to purchase
The appellant cites and relies upon the cases of Ely v. Hanford, 65 Ill. 267, and Kilbourn v. Sunderland, 130 U. S. 505. The first of these cases, while conceding the right of a. principal to recover the difference between the amount paid by his agent for a specific property and a greater sum he had obtained from his principal by falsely pretending that he had paid the greater sum, holds that the rule is different when the agent had contracted for the property in advance of his employment as agent. But it seems to us that this distinction is not sound. The agent should not be allowed to make a profit out of his bargain by deceiving his principal. This is contrary to the fundamental principles of agency, where the utmost good faith is required.
Nor is the remedy by rescission always available. The discovery of the fraud may not take place until after the purchaser has placed permanent and costly improvements on the property, the value of which cannot be accurately estimated, or after he has put it beyond his power to return it. And again, the amount the agent unlawfully exacts, when-compared with the whole purchase price, is usually small,, and the difficulty experienced in so framing a judgment that the principal may not lose the purchase price paid as. well as the property he returns is so difficult as to make the
The judgment is affirmed.
Mount, Parker, and Gose, JJ., concur.