Callaway v. Wilson

CHIPMAN, C.—

Action to recover from defendant, as plaintiff’s agent in the purchase of certain real estate, the difference between the price which defendant represented to plaintiff the property would cost,—namely, $1,850,—and the price which defendant paid to make the purchase,—namely, $1,520,—the difference being $330. The cause was tried by the court without a jury and plaintiff had judgment, from which and from the order denying his motion for a new trial defendant appeals.

[422]

The following facts are found by the court: That on May 13, 1901, defendant agreed with plaintiff to procure a thirty days’ option to purchase certain land for the sum of $1,850, receiving from plaintiff at the same time fifty dollars to be paid in securing said option, and to be applied on account of the purchase price if plaintiff elected to purchase; that at the time of entering into said agreement defendant represented to plaintiff that the owner of the land would not take less than $1,850 for the same; that defendant immediately thereafter went to San Francisco and there secured an option to purchase said land from the owner for $1,520, and paid to the owner said fifty dollars and took the option in his own name, and thereafter informed plaintiff that he had secured the option on said land for the sum of $1,850, whereas in fact he had secured said option for $1,520, and by its terms was to pay the owner $1,470 in addition to said fifty dollars; that relying on the statement made to him by defendant, the plaintiff then gave defendant the additional sum of $1,800 and instructed him to purchase the land for plaintiff; that defendant did not show said option to plaintiff, and thereafter defendant paid to the owner $1,470 and secured in his own name a conveyance of said land, and immediately thereafter, •—to wit, June 3-, 1901,—conveyed said land to plaintiff; that defendant at no time informed plaintiff that he had secured said option for any sum less than $1,850, and at the time plaintiff gave defendant the additional $1,800, as above found, plaintiff believed that said sum, together with the fifty dollars given defendant as above stated, was the true purchase price of said land which he, through defendant, was to pay to the owner; that defendant at all the times mentioned was acting for and on behalf of plaintiff, and was at no time during said transaction acting for the owner of said land, and that plaintiff and defendant were not at any time dealing with each other concerning said land. As conclusions of law, the court found that defendant was the agent of plaintiff, and that it was defendant’s duty to purchase said land for plaintiff at the lowest possible price; that defendant was not the agent of the owner; that plaintiff is entitled to the difference between the amount defendant paid for the land and the amount received from plaintiff therefor; that the