Carothers v. Caine

LENNON, P. J.

This is an action to recover the sum of $1883.30, alleged by plaintiff to be a secret profit made by defendant in p, transaction in which the latter was acting as plaintiff's agent. Plaintiff recovered judgment for said amount and interest, and defendant appeals.

Apart from various specifications of error as to the admission of testimony, the main ground urged in support of the appeal is that there is no evidence in the record that the defendant was acting as the plaintiff’s agent in negotiating the terms of the contract, or was anything but a middleman between the parties; that the evidence shows that the plain tiff fixed his own terms and employed defendant merely to procure their acceptance, and that the defendant being also the agent of the other party to the exchange of properties out of which the claim arises, and known by plaintiff to be such, was entitled to be compensated by such other party; that consequently the sum received by defendant as such compensation was not a secret profit, and that the trial court erred in holding that it was.

We think the contention of appellant must be sustained.

The evidence shows that Caine, the defendant, being a real estate agent, had been authorized by one Breckinridge to find a purchaser for eighty acres of vineyard in Fresno County owned by him, and in pursuance of the authorization offered the property to Carotliers, the plaintiff, for a price of sixteen thousand dollars. Carothers declined to pay this price, but said that if he could get it for fifteen thousand dollars he would make an offer for it, and requested the defendant to see if he could get a better price on it, which the defendant promised he would do, later reporting to the plaintiff that the owner would not abate his demand. The negotiations continued, and finally an agreement was entered into between the plaintiff and Breckinridge by 'which, instead of paying cash for the eighty acres, the plaintiff agreed to transfer to Breckinridge certain real and personal property owned by him, and the transaction went through in that way. The agreement of exchange was drawn by the defendant, and was in the form of an offer on the part of the plaintiff of the prop

[73]

erty that he was willing to transfer for the eighty acres, together with an authorization to the defendant to act as plaintiff’s agent in negotiating the exchange, and an agreement to pay him a commission of $125 in case he procured an acceptance by Breckinridge of plaintiff’s offer. This acceptance was procured by the defendant in writing upon the same day. Before the drawing up and execution of the offer mentioned, and at a time when it appeared to the defendant that he could bring the parties to an understanding, he procured from Breckinridge a contract to receive out of the money or property which Breckinridge should' get in the deal all over a certain amount. The difference turned out to be the sum of $1,883.30, which was paid by Breckinridge to the defendant, and is the amount for which the plaintiff sues upon the theory, as we have said, that the defendant was plaintiff’s agent in conducting the transaction, and was forbidden by law to make a secret profit therefrom.