Jensen v. Jones Miller, Inc.

WHITE, J. This is an action by a principal against her brokers to recover secret profits and commissions paid upon a sale of real estate. By her complaint plaintiff alleged that on or about June 20, 1939, she and her co-trustee authorized defendants Jones Miller, Inc., Ltd., and Harry Miller, as brokers, to procure a purchaser for certain described real property at a minimum price of $35,000 or such higher price as said defendants might obtain, and orally agreed that in the event that such purchaser was procured through the efforts of the named defendants, the latter would be paid a commission of five per cent of the amount of the agreed selling price. That thereafter, on or about July 15, 1939, defendants just named employed defendant L. L. Hullet to assist them in finding a purchaser for said real property and agreed with said defendant Hullet that in the event he should procure a purchaser he would receive as commission for his services the entire amount of the selling price of the property in excess of $34,125. The complaint further charged that defendants did not at any time report to plaintiff or her co-trustee the employment of said Hullet and that she and her co-trustee had no knowledge of the employment or the terms thereof, and that such employment was wholly without authority from plaintiff or her co-trustee. It was then alleged that on July 24, 1939, defendant Hullet procured one Jennie Grawoig as a purchaser of the property at an agreed price of $36,000 and obtained from said Jennie Grawoig a deposit [469]of $1,000 on the purchase price; that on the same day defendants placed the transaction in escrow. The complaint further charged that defendants did not ever report to plaintiff or her co-trustee the sale to said Jennie Grawoig, but that on the contrary the defendants “deliberately and with intent and purpose to deceive and to defraud plaintiff and her co-trustee, concealed and withheld from said trustees all knowledge and information relative to said sale to said Jennie Grawoig at and for said price of $36,000.”

Plaintiff further alleged in her complaint that in furtherance of the alleged plan and scheme to deceive her and her co-trustee and to conceal from them the sale to Jennie Grawoig, the defendants caused one Charles B. Grimes and Wilma Grimes, his wife, to be named as vendors of the property in escrow and caused to be opened another escrow wherein plaintiff and her co-trustees were named as vendors of the property and the Grimes’ named as vendees at a sale price of $35,000. Then followed allegations that no report of such proceedings was ever made by defendants to plaintiff or her co-trustee, and that neither they nor the Grimes’ had ever been consulted or had any knowledge of said escrow or the use of their names therein. The complaint then charged that on July 28, 1939, without disclosing to plaintiff or her co-trustee any information whatever relative to any pending sale to Jennie Grawoig, defendants “falsely and fraudulently reported to plaintiff and to her co-trustee that they had procured a buyer for the above described property, to wit, one Charles E. Grimes, at a price of $35,000; that said sum of $35,000 was the best price they could obtain for the property, and the best price for which it could be sold under prevailing conditions”; that at the time this last mentioned information was transmitted to plaintiff and her co-trustee the defendants “well knew that said Grimes was not the purchaser of said property, at any price; that he was a mere ‘dummy’ being used by defendants in furtherance of their scheme to conceal from their principals” (plaintiff and her co-trustee) “all knowledge of the proposed sale of the property to Jennie Grawoig at a price of $36,000, and said defendants well knew that the simulated sale to Grimes . . . was solely for the purpose of placing the title to the property in Grimes to be immediately deeded to Jennie Grawoig.”