Day v. Laughlin

WORKS, J.

The evidence showed without dispute that plaintiff gave to defendant William T. Laughlin an option to purchase certain real property for a consideration of $10,000, deed to be made to Laughlin or to such person as he might designate, and that Laughlin sold the property to defendant Filipponi for $21,612, paid to plaintiff $10,000, and kept the excess. The action was instituted to recover the amount retained by Laughlin, upon the theory that he was the confidential agent and adviser of plaintiff, and plaintiff’s special agent for the sale upon commission of the property described in the option. Deane Laughlin was made a party defendant for the reason that William T. Laughlin, his relative, had conveyed to him a part of the avails of the transaction with Filipponi. The latter was made a defendant because at the time the complaint was filed he had not paid the entire consideration for the purchase of the land. He later paid into court the amount yet due and was not an active party to the litigation. Judgment went for plaintiff and the defendants William T. and Deane Laughlin appeal. It will be understood henceforth that all references to the appellant in the singular contemplate appellant William T. Laughlin.

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With two exceptions the points made by appellants are that certain findings of the trial court are not supported by the evidence. These findings, however, are so amply sustained by the record that we shall not be at pains to refer at great length to the facts developed at the trial. The evidence quoted in the briefs, a large part of it uncontradicted and much of it coming from the lips of appellant and from letters written by him, shows that the judgment is eminently equitable and just. From the record presented we cannot doubt that appellant was guilty of a shameful and heartless breach of the confidence which respondent had reposed in him.

It is first contended that the evidence does not sppport a finding that “continuously for more than ten years last past the plaintiff . . . has been and still is afflicted with palsy, and on and continuously for several years preceding” the date of the option “by reason of said disease and old age, and greatly enfeebled physically and .mentally and by reason thereof, incapable of attending to his business or of managing his property.” There was testimony that respondent had been palsied for fifteen years, that he had been in poor health for that length of time, that “for a good many years” he had been unable to attend to his business and had attended to none of it, and that he got about at all with great difficulty. The trial judge, of course, had an opportunity to observe respondent’s age and physical and mental condition. While the latter was on the witness-stand he was questioned thus by the judge: “Q. How long have you been that way? A. I have been that way for ten years, easily. Q. As bad as you are now? A. As bad as I am now. Q. Are you not able to sit quietly at all? A. No.” We ourselves are able to determine from some of respondent’s answers on the witness-stand that he was not at the time mentally alert.