183 Pa. 532 | Pa. | 1898
Opinion i;y
It was proved by indisputable testimony, and not at all denied, that the actual selling price of the land by the owner was $12,000, and that John Keck deceased obtained from W. 11. Brown & Co. who were the selling agents of the owners, an option to buy the land for $15,000. It is also an undisputed fact that tire price named in the deed was $24,240, and that the deed was made directly by the owner, Henry S. Mitchell, and his wife, to the ultimate purchasers. The plaintiffs were four of these purchasers, to wit: John Yeaney, Walker Smith, John C. Smith and John F. Dinger. The conveyance was made to all the purchasers jointly, and it expressed the interest of each one thus: W. H. Gotwald, one eighth, John F. Dinger, one eighth, Walker Smith nine thirty-seconds, John C. Smith, three sixteenths, John Keck one eighth, John Yeaney, one eighth, Benjamin Keck one thirty-second. Under the deed the vendees took title to the whole property, 4040 acres, as tenants in common, and the fractional interests of each were in the whole property, and the relation of the parties to each other was that of tenants in common. The evidence also shows without dispute that John Keck was the one and only person who negotiated the sale. It was he, individually, who procured the purchasers. Whatever representations therefore he made to induce the purchasers to buy were made upon his personal responsibility. It is also an undoubted fact established by a mass of testimony which is not disputed, that John Keck did actually represent that the purchasing price which was to be paid for the land, was $6.00 per acre. It is desirable that some of the testimony should be quoted, in order to show just what was said, and by whom and to whom it was said, in relation to this subject. John Slicker testified that he had known John Keck about thirteen years; that he met him at church in the summer of 1888, and that Keck told him, “he had been to.
If the foregoing testimony is believed, and we know of no reason why it should not be, it meets several points of contention which are supposed to affect adversely any right of recovery in this case. It seems clearly that the scheme of Keck was a scheme for a joint, and not a several, purchase of the land. His whole plan contemplated a purchase by others joined with himself in one common enterprise. The deed is quite conclusive proof in the same direction. It is a matter of no conse
Hulett E. Smith, a son of Walker Smith, one of the plaintiffs, testified that he was present at the conversation between Keck and his father and John C. Smith, his uncle, another of the plaintiffs, in June, 1888. He said: “Mr. Keck, my father and uncle John talked the matter over in the presence of myself and my brother. Father said if we go in we will have to be very careful and see that the title is good. Mr. Keck produced some papers and explained how Mr. Mitchell came by the land. He said he was buying from Mr. Mitchell, Judge Mitchell, I believe he called him. He said the price was $6.00 per acre. That is, Mitchell’s price was $6.00 per acre. Father said if we paid the cash couldn’t we get it cheaper. Mr. Keck said no, that that was their price. Mitchell’s price. . . . Mr.
Elmer E. Smith, a brother of the last witness, fully corroborated his brother’s testimony as to the conversation in the presence of both, with Walker Smith and John C. Smith. He said, that in a conversation about a week previously, to which also his brother testified, Keck said: “I have struck a nice thing in Florida; there is 4040 acres of land that can be bought for $6.00 per acre. I am around trying to get parties to go in along and buy it, as it is too big a thing for me myself, and would like to have your father take a share too, as it would be a nice thing for you boys. ... I then asked him who this land could be bought from. He said Mitchell. Judge Mitchell he called him. He then spoke of Mr. Brown being Mitchell’s agent. I said, are you getting it from Brown or from Mitchell? He said ‘ if I get up the company we will get it direct from Mitchell. There will be no trouble about the title.’ Then I asked him if he didn’t suppose it could be bought for less than $6.00 per acre, as it was a good deal of money. He said no, that it could not, and he had only to the first of July at that price.” Referring to the second conversation when all were together, he tes
It will be seen that both these instruments recited the fact that the refusal price of the land was #6.00 per acre, and the amount to be paid by each party was fixed on the basis that that was the actual purchasing price to be paid. Neither of them was an agreement by Keck to sell as his own the respective interests of each, but that those interests respectively should be conveyed by the owner, Mitchell, to these gentlemen as purchasers, and this is what was actually done.
As we view the case then, the evidence establishes the facts that John Keck having an option-to buy the land through Brown & Co., for #12,000, but for which he was to allow Brown & Co. #3,000, sought the plaintiffs and asked them to join him
We have no doubt of the jurisdiction of equity in such a case. Here is a community of interest in a joint venture in which the defendant has in his possession money belonging to the plaintiffs which requires an accounting for its just determination. Here is fraud practiced upon the plaintiffs, by means of falsehood and false representations to induce them to join him in an enterprise common to all. Here is the violation of a trust and confidence reposed in him by the plaintiffs, and a breach of his duty as the agent of the plaintiffs, as his principals, in the purchase of a large and valuable tract held by them and him as tenants in common. All of these are heads of equity jurisdiction. So far as the right to relief is concerned in such circumstances, our own case of Short v. Stevens, 63 Pa. 95, furnishes an almost exact parallel. The syllabus of the case is, “ Stevenson being in negotiation for oil land, proposed to form a company, represented that the land could be bought for $12,000, and induced Short to take and pay for a share in it at $1,000. Stevenson bought the land for $6,000, without disclosing to his associates the price which he gave. Held, that on these facts Short could recover his money back.” Williams, J., delivering the opinion said: “ Pie (defendant) was not the owner of the land, and he did not buy it for himself, but for himself and his associates, and good faith required that he should deal fairly with them, and charge them no more than the amount actually paid therefor. As was said by the present Chief .Justice in the recent case of Simons v. Vulcan Oil Co., 61 Pa. 202, ‘An agent cannot make profits out of his principal in the business of his agency, nor a partner out of his co-partner without his assent, nor an associate out of his co-associates, for whom he had undertaken to act. That this is the law authorities need not be required to prove. Itis’elementary.’ The principle applies with all its force to the facts as proved in this case, and the evidence should have been submitted to the jury, with the instruction that if they found that the defendant purchased the land for himself and associates without disclosing the price paid therefor, and was guilty of concealment and misrepresentation as to the terms of the purchase, the plaintiff was entitled to
In the case of Katz v. Johnston, 178 Pa. 346, a hill in equity was sustained upon the following facts: plaintiff and defendant entered into an agreement in writing to buy land and divide it into building lots for sale at a profit. Plaintiff was to furnish all of the hand money to make the deferred payments, and was to be repaid out of the first sales, and after such repayment she was to receive two thirds of the profits. Defendant negotiated for the purchase of the property, and by a secret arrangement with the vendors received $500 out of the purchase money. Only a very small amount was realized from the sale of the lots, and plaintiff was obliged to pay the whole amount of the purchase money. In the meantime judgments had been entered against the defendant which he claimed were paid. On a hill in equity filed by the plaintiff against the defendant, the court decreed that the defendant should repay to the plaintiff the $500 which lie had fraudulently obtained from the vendors, and that he should pay to her one half of the purchase money or, in lieu of such payments, should execute to her a quitclaim deed of his interest in the land, and have the judgments against him satisfied of record. Held, that the decree was proper and should be affirmed.
In the case of Zahn et al. v. McMillin et al., 179 Pa. 146, we held that if a party knows that another is relying upon bis judgment and knowledge in contracting witb him, although no confidential relation exists, and lie does not state material facts within bis knowledge, tlie contract will be avoided; for, knowingly to permit another to act as though tlie action was confidential, and yet not state material facts, is fraudulent. The case was a bill in equity to account, alleging fraud by tbe defendants in withholding certain facts from the plaintiffs with whom tbey were jointly interested in a certain transaction in whieli all were interested. Our Brother Dean, delivering the opinion, reversing the court below for dismissing the bill, said, " It is not denied, nor could it bo, in the face of the evidence, that by that contract J. M. shares in the fruits of the fraud to which E. A. was an active party, and for which ho is answerable in an account. But did J. M. by his declarations and conduct aid his brother in procuring tlio fraudulent contract so as to ren
Upon all the evidence in the present case, and upon all the principles both of law and equity, to which persons in the relations of these parties are subject, we are of opinion that the defendant’s intestate is liable to account to the plaintiffs and their associates in this proceeding. The assignments of error are dismissed.
The decree of the court below is affirmed and appeal dismissed at the cost of the appellant.