Humburg v. Lotz

COOPER, J.

This is an appeal from a judgment and order denying defendant’s motion for a new trial.

The facts, as shown by the findings and the evidence, are substantially as follows: Defendant is a brother of Augustus Lotz, who was, during the years 1903 and 1904, the president of the “Sanitary Compressed Air and Suction Dust Removing Company,” a corporation doing business in California, and which was at the times herein named the owner of certain letters patent for certain automatic air dust removing and cleaning devices, and portable wagons, used in its business. In the early part of the year 1903 the said corpora

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tion agreed with defendant that he should have the exclusive right to purchase and sell the said letters patent, and the devices and portable wagon in connection therewith, in the territory covered by the county of Santa Clara, for the sum of $8,000, out of which defendant was to be paid a commission of $3,000, making the net price to defendant of $5,000, and this arrangement was in force at all the times the defendant was negotiating with plaintiff. Plaintiff and defendant had known each other .for many years, and during such time had been upon friendly terms, and plaintiff had faith and confidence in the honesty, integrity and friendship of the defendant.

In the month of September, 1903, plaintiff was engaged, and for a long time prior thereto had been engaged in the business of beating and cleaning carpets in the city of San Jose, and had a fixed place of business in said city, with a plant and necessary appliances therefor of the value of $3,000. About this time the defendant, without informing plaintiff anything about his arrangement and contract with the corporation of which his brother was president, went to plaintiff and told him of the merits of the patent and devices of the corporation, and that they were the best and most practical and valuable of such rights and devices. Defendant further told plaintiff that because of the fact that his brother was the president of the corporation, he, the defendant, could purchase the patent for Santa Clara county, and the devices, upon very favorable terms. After several interviews the defendant informed plaintiff that the said patent right and appliances could be purchased for Santa Clara county for $8,000. Plaintiff did not know of the fact that the defendant had an arrangement by which he could purchase the letters patent and devices for $5,000, and had no means of knowing such fact, but relied solely upon the statements and representations made to him by defendant. The result of the interviews was that plaintiff and defendant agreed that they would jointly purchase the letters patent and devices for $8,000, and also the plaintiff’s plant at its value, $3,000, making $11,000, and that each should become the owner of and pay for an undivided one-half thereof, $5,500. The plaintiff turned over his plant at its valuation and paid the balance, $2,500. The defendant only paid in $2,500, and not