Kevane v. Miller

McLAUGHLIN, J.

This is an action to recover the sum of $1,400 alleged to he due from appellant to respondent by reason of the fact that the former, while acting as the special agent of the latter for the purchase of certain corporate stock, purchased the same for $1,500 and demanded and received from his principal the sum of $2,900 in payment for said stock. The appellant in his answer denied that he acted as the agent of respondent in the transaction, but the court found against him on the issue thus presented, and this appeal is from the judgment thereupon entered against him. The principal point urged by appellant as ground for reversal is that the evidence is insufficient to support the finding that he acted as the agent of respondent in the purchase of the stock. It is a well-settled rule of appellate practice, that when there is a substantial conflict in the evidence, the findings of the trial court will not be disturbed. And it is equally well settled that such conflict exists whenever there is “such a substantial and material variance in the evidence adduced upon both sides of a litigated question of fact as will sustain the determination of the lower court, no matter which way it may find therefrom.”

(Raymond

v.

Glover,

144 Cal. 552, [78 Pac. 3].)

A careful examination of the evidence in this record leaves no room for doubt as to the sufficiency of the evidence to sup

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port the findings assailed. The testimony of respondent certainly affords such support, and the trial court, unquestionably, had the right to give his evidence full credit, even if it had been flatly contradicted by the testimony of every other witness in the ease. There was, however, no such con: tradiction. On the contrary, the evidence of appellant himself lends strong corroboration to the testimony of his adversary in many important particulars. Both agree that the appellant at the outset was authorized by respondent to purchase the stock for $1,500. Although he agreed to make an effort to purchase the stock for that sum, he did not communicate this offer to the owner of the stock, but later informed the respondent that it could not be purchased for less than $2,900. The latter thereupon authorized appellant to purchase the stock for that price, saying he would pay $50 down and the balance within sixty days. According to the testimony of appellant and the owner of the stock this offer was communicated to the latter, who says that he then remarked that he was “not in the time business.” Nothing further was said at that time, but about 10 o’clock that same morning the appellant and the owner reached an agreement whereby the former purchased the stock for $1,500, paying $100 down and the balance within fifteen days thereafter. Immediately after this agreement had been reached the appellant wrote respondent that he had purchased and was the owner of 'the stock, which he offered to respondent for the exact sum the latter had authorized him to pay when informed that it could not be purchased for less. The terms of payment, the amounts being excepted, were identical with terms secured from the owner by appellant, as a sequence flowing from the negotiations opened in respondent’s behalf. This fact is significant when considered in connection with the peculiar circumstance that the offer accepted by appellant was not only far more advantageous than the offer that morning made by him as respondent’s agent, but was for the identical amount named in the preliminary authorization when, in response to appellant’s suggestion, respondent authorized him to purchase the stock for $1,500.