Martin v. Stone
Before: James
Synopsis
Sale of Joint Option on Land to Brokers—Profits on Resale— Mistake in Assignment—Oral Agreement—Action to Recover Excess.—Where plaintiff and defendant, as joint owners of an option on land, desired a sale, and plaintiff negotiated a sale to brokers, the immediate profits on which were divided, but plaintiff negotiated a further one-eighth interest in the profits on resale, and by mistake assigned half of one-sixth interest therein to defendant, with an oral agreement that if it should be one-eighth, the profits should be adjusted on that basis, and the defendant collected the one-eighth interest in such profits, and retained one-sixth share, under the assignment, the plaintiff is entitled to recover the excess, and to prove the oral agreement in the action to recover the same.
Id.—Support of Bindings—Conflicting Evidence.—Where the court found all of the allegations of the plaintiff’s complaint to be true, though there was conflicting evidence as to many of the matters in issue, but there was sufficient evidence to support the findings, the determination of the trial court as to the facts must be treated as conclusive upon appeal.
Id.—Oral Evidence not Varying Terms of Assignment—Agency— Trust.-—The plaintiff being an agent of defendant in negotiating the profits on resale, and the defendant being the agent of the plaintiff in collecting such profits, it was competent for the plaintiff to show the conversations between them to explain the intent and understanding of the parties. Even if the assignment had purported to transfer all of the moneys to be received from the brokers by plaintiff, plaintiff would not be estopped under appropriate pleadings from showing that one-half of the money collected under the assignment was held by the assignee as trustee of the assignor, and that the assignee was an agent of the assignor for collection of his share.
Id.—Obal Evidence of Relation of Principal and Agent—Apparent Title.—It is always permitted to be shown that the relation of principal and agent exists between two persons, notwithstanding the fact that the agent may hold the apparent legal title of the property of his principal.
Id.—Reformation of Assignment Unnecessary, but not Prejudicial. It was not necessary for the'court to reform the assignment to express half of one-eighth interest instead of half of one-sixth interest in the profits of the land on resale, in order to a recovery of the excess collecteo by the defendant, which it was agreed should be returned to plaintiff.
Id.—Cause of Action not Barred.—It is held that the plea of the statute of limitations is not sustained, the action having been commenced within less than two years from the receipt of the money by the defendant.
JAMES, J.
Appeal by defendant from a judgment entered against him in favor of plaintiff in the sum of $1,904.46; also an appeal from an order denying defendant’s motion for a new trial.
In March, 1903, an option was obtained in the name of defendant from Elizabeth Hollenbeck, whereby the right to purchase one hundred and forty-five acres of land in Los Angeles county was given by the said Elizabeth Hollenbeck. Plaintiff and defendant each owned a one-half interest in this option. They each endeavored to negotiate a sale of the option, and the efforts of plaintiff in that direction were successful. The option was sold to Strong and Dickinson, real estate brokers. Plaintiff and defendant shared equally in the profits of the sale, which amounted to $75 on each acre of land covered by the option. At' the time plaintiff negotiated the sale of the option, he also obtained an agreement from Strong and Dickinson, which recited that, in consideration of the opportunity to purchase the option being
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presented to the real estate brokers, they would pay to plaintiff one-eighth of the net profits to be obtained on the sale of the property. Defendant was not informed of the fact that plaintiff had secured this contract in his own favor until some time after the option had been sold. When he did learn of it, he demanded that he be given an assignment of one-half of the amount of plaintiff’s interest so reserved to him by the contract mentioned. The written agreement referred to, made by Strong and Dickinson in favor of plaintiff, was not at hand at the time the demand was made upon plaintiff by defendant, and plaintiff did not then remember whether the. agreement gave him a one-sixth interest or a one-eighth interest in the net profits. Defendant insisted that the interest so secured was a one-sixth, and thereupon plaintiff executed an assignment in favor of defendant in the following form:
“Los Angeles, Cal., June 22d, 1905.
“For value received I hereby sell, transfer and convey to Daniel Stone all my right, title and interest in and to one-half of my one-sixth interest in and to the Wellington Heights Tract.
“(Signed) GEO. C. MARTIN.”
At the time this assignment was executed, it was orally agreed between plaintiff and defendant that in the event it was found that the interest of Martin was for one-eighth instead of one-sixth of the profits, the difference between one-half of a one-sixth interest and one-half of a one-eighth interest should be returned to plaintiff by defendant whenever a final settlement was had with Strong and Dickinson. In September, 1906, defendant made a final settlement with Strong and Dickinson, and collected on the assignment given him by plaintiff one-twelfth of the profits derived from the sale of the land. It was then found that plaintiff’s interest was a one-eighth interest, instead of a one-sixth, in such profits, and, therefore, the amount collected by defendant was $1,589.52 in excess of one-half of the amount due plaintiff under his contract with Strong and Dickinson. Defendant never accounted to plaintiff for this amount and this suit was brought to recover it.
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