Stenian v. Tashjian

LORIGAN, J.

The court found, in accordance with the allegations of the complaint, that plaintiff and defendant in 1912 by verbal agreement became partners in the purchase of a tract of land in Tulare County; that prior to the purchase, which was made by the partnership at the solicitation of the defendant, he had entered into a written agreement with the owners of said land to pay him two thousand dollars as a commission in case he made a sale of the property, which fact, however, defendant, for the purpose of deceiving plaintiff, concealed from him; that plaintiff did not discover the fact of such agreement for a commission till a couple of years subsequent to the purchase of the property by plaintiff and defendant as such partners and subsequent to the termination of the partnership and division of the property between them.

The decree of the court was that plaintiff recover from defendant one-half of the money already paid to him under the contract for commissions by the prior owners of the property and half of all moneys to be paid defendant thereunder in the future when a mortgage on the property executed by plaintiff and defendant was paid. Defendant appeals from the decree.

Appellant, as grounds for a reversal, makes but two points which have any appearance of merit. He insists, first, that the evidence does not sustain the finding that a partnership was entered into between plaintiff and defendant for the purchase of the land, but that the evidence simply shows that defendant, who had the land for sale as agent for the

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owners, approached the plaintiff and one Ogaspian with the proposition that the three of them purchase the land for the sum of fifteen thousand dollars, of which they would pay cash two thousand dollars (one-third by each) and give a note and mortgage for the balance of thirteen thousand dol- . lars. The negotiations for the purchase by them was conducted by the defendant and a conveyance made to the three of them of the tract of land undivided as tenants in common, so the defendant contends. Plaintiff and Ogaspian testified that the parties formed a partnership preliminary to the purchase of the land to make such purchase; that the understanding was that they were to purchase the property together, improve it together, put one-half of it in grapes and the other half yearly in barley. Subsequently, Ogaspian became dissatisfied with his purchase and his interest was bought out by plaintiff and defendant. Defendant testified that there was nothing said about the partnership when the purchase was made; that each simply took an equal undivided interest. It appears, as all the parties testified, that defendant took charge and management of the land from the beginning, leasing portions of it and had other portions sown to barley. No crops, however, matured, and his share of the loss of the venture, consisting of the expense of cultivation and the purchase of seed—some five hundred dollars—was paid defendant by plaintiff. It is the claim of appellant that this evidence does not show a partnership, but at most a tenancy in common in the purchase of the property. As far as the alleged deceit of the defendant, as found by the court, is concerned (assuming it was proven) in concealing from his associates the fact that he was obtaining a secret advantage over them through commissions to be paid him for the sale and purchase of the property, it would be immaterial whether such sale and purchase was made for a partnership embracing the defendant as a member thereof or as a tenancy in common with defendant as one of the cotenants. In either event the defendant in negotiating the purchase for the benefit of his associates would be the agent of such associates, and as such bound to the utmost good faith with them and could make no secret profit for himself at their expense. Now, while this rule of the liability of the agent for deceit practiced upon his associates is no different either in law or