Konda v. Fay

ALLEN, P. J.

Plaintiff declared upon a written agreement entered into between defendant and one Pluth through which an exchange of real property was sought to be effected. This agreement, after a specification of the terms of exchange, contained a further agreement: “That each shall pay one-half of the commission to Anton Konda for his services as agent in arranging this exchange, and that each agrees to pay as his part of such commission the sum of $500.” Defendant by his answer admitted the execution of the agreement, but alleged that plaintiff was in his employ as agent to effect the exchange, and that by reason of false and fraudulent representations of plaintiff as to the value of the premises owned by PJuth, and in relation-to the amount which a certain local bank was ready and willing to loan thereon, he was induced to enter into the agreement. That before plaintiff brought the suit and upon discovery of the fraud, he paid Pluth a sum of money to be released from the contract and the same was by the agreement of the parties rescinded. The trial court found that before the exchange defendant had employed plaintiff to effect and procure such exchange; that a confidential relation therefore existed, and that plaintiff had made the false statements alleged knowing the same to be false, upon the truth of which defendant relied and was thereby deceived and misled to his injury; that defendant was a stranger in the vicinity of the lands and did not know the market value, nor the value placed thereon by the bank, or the amount which it would loan thereon, but in the proposed exchange confided altogether in the statements of

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plaintiff as agent. Judgment was accordingly entered in defendant’s favor, from which, and an order denying a new trial, plaintiff appeals upon a statement of the ease.

Appellant insists upon the inaccuray of the finding with reference to his employment and the relation of agency found to exist. Were the action one to recover commissions due under an alleged employment, and the answer admitted the employment, no proof of written employment would be necessary, as required by subdivision 6 of section 1624 of the Civil Code, as the answer furnishes the proof which the statute requires.

(Jamison

v.