Crocker v. Garland

SMITH, J. This is an appeal from an order granting the plaintiffs’ motion for a new trial.

The suit was brought 'by the plaintiffs for damages for fraud of the defendant, committed by him while acting as their agent for the sale of the land described in the complaint. The nominal purchaser was one Schweppe, with whom the defendant, as plaintiffs’ agent, had made a contract of sale August 21, 1901, for the sum of $25,000, and to whom a deed of conveyance, executed to him as grantee by the plaintiffs and placed in escrow for delivery on receipt of the purchase money, was delivered on the sixteenth day of Octo[276]ber. Sehweppe had executed a prior unrecorded deed of the land to one Hinman, but the land was shortly afterward re-conveyed to him, and by him conveyed to one Earl by deed of date November 12, 1891. It is alleged in the complaint that Sehweppe was not the real purchaser; that he was an intimate associate and blood relation of the defendant and Hinman, who was his father in law, and by agreement with the defendant permitted him to use their names in the transaction, but that in truth they had no interest in the purchase, but took the deeds referred to for the use and benefit of the defendant; and that the defendant fraudulently represented to the plaintiffs that Sehweppe was the real purchaser, which was believed by them. The answer of the defendant alleges, in effect, that the real purchaser of the property was the said Hinman, and that the deed was taken by Sehweppe in trust for him and as his agent; that neither he nor anyone except Hinman had any beneficial interest in such sale; that the entire purchase money of $25,000 was paid by Hinman; that the defendant had no interest whatever in the said sale of the said property or any portion thereof; that the plaintiffs knew and had reason to believe that Sehweppe was not in truth or in fact the real purchaser of the land, but knew that the real purchaser was some person living “at or near Dunkirk, the residence of Hinman”; and that Hinman was known to them as the real purchaser from and after October 14th. The sale to Earl, it appears from the defendant’s evidence, included a lot adjoining the plaintiff’s, standing in the name of Sehweppe, but belonging to the defendant, who had paid therefor the sum of $14,000. The aggregate purchase money received for the two lots was $60,000, of which $30,000 was paid to Hinman and the balance retained by the defendant.

The case was tried by a jury, who rendered a general verdict for the defendant, with special findings on certain questions submitted to them, among which were the following: (1) That the defendant did not conceal from plaintiffs the name of the real purchaser of the property; (2) that prior to the closing of the sale the defendant had no agreement with Hinman to the effect that the defendant should have the profits which might be made upon a resale of the property over and above the sum of $5,000; (3) that the real purchaser of plaintiffs’ property under the deed was