Spaulding v. O'Connor

KING, P. J.,

pro tem.

— Plaintiff bought certain real estate at an auction sale conducted by defendants, who were real estate agents and auctioneers. He paid $23,600. After the date of sale, the making of a deposit of $1,000, and final payment and receipt of a deed he discovered that the property was materially smaller in size than was represented by the defendants, brought the action against the defendants for damages without joining the former owners of the property, and recovered $4,545.

Defendants appeal, claiming (1) That the evidence does not support the findings and (2) That the judgment is against law.

The representations as to size of the property were made by a newspaper advertisement, by a map posted on the property at the time of the sale and by one defendant orally at the time he was conducting the auction, but it nowhere appears that either defendant knowingly made a false statement of the size.

As to the first claim of the appellants it appears that complaint is made of paragraph 3 of the findings where it is found that “plaintiff had no knowledge or information as to the. name of the owner or owners of the property at the time he purchased same . . . and the name of such owner or owners was not disclosed to him by said defendants or either of them.” And also of paragraph 4 of the findings where “the court finds that the plaintiff

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did not discover that the- property he purchased was forty feet shorter than what it was actually represented to be until March 26, 1923, and after he had become the owner of said property.”

As to this it is only necessary to say that there is evidence to support these findings and it is not the function of this court to weigh the evidence produced to determine in whose favor is the preponderance.

The second specification of ground for a reversal— that the decision is against law—is based upon the argument that appellants were acting as the agents of a disclosed principal and that therefore whatever damage plaintiff suffered was imputed to their principal only and appellants were not liable for it.