Ward v. Andrews

JAMES, J.

Appeal from a judgment entered in favor of the plaintiff. The action was brought to recover the sum of one thousand dollars. Plaintiff, in her complaint, alleged facts showing that the defendant, while acting as her agent in negotiating for the purchase of certain furniture, furnishings, and lease of an apartment house, made a profit of the sum mentioned without her knowledge or approval. The facts alleged show that the agency was gratuitous; that plaintiff was a widow, and that defendant had been a friend of her late husband and herself. The allegations were, in part, as follows: “That defendant at all said times stated and represented to plaintiff that he was her friend and had been the friend of her deceased husband; that he was engaged in the real estate and apartment house brokerage

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business and had had many years’ experience in such business; that by reason of such friendship and such experience he could and would aid plaintiff in investing her money in the manner she stated, as aforesaid, and could and would do so without receiving or expecting any compensation from plaintiff therefor.” The undisputed evidence showed that defendant did negotiate for the purchase of furniture, furnishings, and lease of an apartment house, and that a deal was consummated whereby plaintiff became the owffer of the same at a price of twelve thousand dollars. The first price made by the owner of the place was twelve thousand five hundred dollars. The owner took up the matter of paying a commission with the defendant and they finally agreed upon a price of twelve thousand dollars, out of which defendant was to receive, and did receive, the sum of one thousand dollars. Upon making discovery that the defendant had been paid the amount mentioned, plaintiff brought this action.

The court made findings in accordance with the facts alleged, and it may be said that there was ample evidence to show that defendant assumed the duties of an agent toward the plaintiff. There was evidence also showing that the defendant, after the deal was consummated, had made statements to third persons to the effect that he had made no profit on the deal. In Ms own testimony the defendant, while admitting Ms friendship and acquaintance with the plaintiff and her deceased husband, denied that he had assumed the confidential relation of agent toward the plaintiff. This testimony, however, merely presented a conflict in the evidence wMch the trial judge had the duty to resolve and as to wMch conflict tMs court can have no concern. [1] That a gratuitous agent is bound to use the same degree of good faith toward his principal as an agent for compensation is clearly settled beyond any room for dispute. Mr. Mechem, in his work on A.gency, second edition, at paragraph 1223 et seq., restates the rule and cites authorities thereunder. We quote from paragraph 1226 of the same work: “In accordance with this rule, where one who while pretending to act as the agent of the purchaser of certain real estate, was in reality acting as the agent of the seller, and received as his compensation from the seller a note given by the purchaser as part of the purchase price,