Dobinson v. McDonald

Harrison, J. In March, 1886, the defendant executed to the plaintiffs the following instrument: —

“ Los Angeles, Cal., March 20, 1886.

“ To Messrs. G. A. Dobinson, J. A. Fairchild, and T.

E. Rowan.

“ I hereby appoint you sole agents for the sale of my ranch, containing about four thousand two hundred (4,200) acres, situate in Los Angeles County, California, and being part of the San Pedro ranch. I will sell said ranch for one hundred and twenty-six thousand ($126,-000) dollars, payable one third cash, and balance in deferred payments at one, two, and three years, secured •by mortgage on land, and drawing interest at eight per cent per annum, net, to me. You will advertise and push the sale of said property at your own expense, and in consideration of your services I will pay you a commission of five thousand ($5,000) dollars, in the event ,of a sale of the whole of the ranch at above price, or by your procuring a customer who will buy on said terms. , . . . I agree to pay you the commission as above, if I should .sell or agree to sell said ranch, or part of it, to any one in the twelve months next ensuing, and after-wards until you are notified that this agreement is at an .end. You are authorized to accept a deposit and to give a binding receipt to a purchaser on the above terms, and I will furnish abstract of title at my expense.

“E. N. McDonald.”

After the execution of this instrument, the plaintiffs, under its authority, and until December 1, 1886, acted [35]as the agents for the defendant in endeavoring to effect a sale of said property, expending money and carrying on negotiations therefor, and used reasonable diligence therein. On the 24th of November, 1886, the defendant gave to one Frye written authority to sell the same property, under which, on the same day, Frye effected a sale thereof to one Boyce, which the defendant, by his written agreement, ratified and confirmed on the 26th of November, 1886. After this sale had been so ratified and confirmed by him, viz., December 1, 1886, he represented and stated to the plaintiffs that he had changed his intention as to selling said land, and no longer desired or intended to sell the same, but had withdrawn it from market, and also stated and represented to them that he had not sold said land, and did not intend or expect to sell the same, and offered to pay them one thousand dollars for the surrender of the above agreement. The plaintiffs, relying upon these representations and statements, and not knowing that he had already sold the land, accepted his offer, surrendered the agreement to him, and received from him one thousand dollars as the consideration therefor. The court, in addition to the above facts, finds that these representations and statements by the defendant were false and fraudulent, and were made by him with the intent to deceive and defraud the plaintiffs, and that he fraudulently concealed from them the fact that he had already sold the land; and also finds that the plaintiffs relied upon the said statements and representations, and were induced thereby to accept his said offer of a thousand dollars, and to surrender said agreement.