Stouffer v. Eymann

JAMES, J.

Appeal by defendants from a judgment in favor of plaintiff and from an order denying defendants’ motion for a new trial.

.'The complaint stated in the ordinary form causes of action upon two promissory notes admitted to have been executed by .the defendants and made in favor of the plaintiff. The notes were given as the result of an agreement made between plaintiff and defendants, the. amount represented thereby being for commissions to be paid to the plaintiff by defendants in consideration of services rendered. Plaintiff was a real estate broker and was instrumental in effecting an exchange of certain property of the defendants in the county of Riverside, California, for real property in the state of Colorado. Defendants in their 'an

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swer sought to avoid liability on the notes by setting up the defense that their agent had béen guilty of fraud in that he had misrepresented the value of the Colorado property which was received by them in exchange for the California real estate. It should be remembered, then, that this is not an action against the other party to the exchange for falsely representing the value of his property, but is an action based solely upon an alleged breach of confidence committed by an agent toward his principals.

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In such a ease, it was incumbent upon the complaining principals to allege and prove that the property received by them in exchange for their own land was of a less market value than was the latter property; in other words, if the Colorado property was worth as much in the market at the time of the alleged transaction as the Riverside property, no damage would be shown, regardless of the fact that the Colorado property might have been represented to be of a value greatly in excess of its actual market worth. The trial judge, after permitting an amended answer to be filed, announced that he did not consider that this amended answer stated any defense to the causes of action pleaded by the plaintiff on the notes, but allowed the defendants to introduce evidence as to what representations were actually made by the plaintiff. This evidence having been introduced, the court denied the defendants the right to introduce other offered evidence not going to the point mentioned, and ordered judgment for the plaintiff. The evident conclusion of the trial judge was that the facts shown in evidence did not establish a case where the defendants either relied upon, or were warranted in relying upon, statements made by their agent; that the latter were, as to the question of the value of the Colorado property, mere opinions, and that the defendants having pursued an inquiry independent of that in which the plaintiff took a part, showed that they did not rely upon his statements, and hence the injury, if any, could not be attributed to the plaintiff. Upon an examination of the evidence we are inclined to agree with the trial judge upon this proposition. However, whether that question was correctly resolved or not, we find exhibited in the record an insurmountable obstacle to the defense claimed on the part of the defend