Brooks v. Dobson

• Decision Date: 06 October 1923
• Docket Number: 24,732
• Citation: 114 Kan. 402,219 P. 528
• Parties: THOMAS BROOKS, Appellee, v. P. J. WEIK and P. F. DOBSON, Appellants
• Court: Kansas Supreme Court

219 P. 528

114 Kan. 402

THOMAS BROOKS, Appellee, v. P. J. WEIK and P. F. DOBSON, Appellants

No. 24,732

Supreme Court of Kansas

October 6, 1923

Decided July, 1923.

Appeal from Riley district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PLEADINGS--No Confusion of Theories in Petition--Petition States Good Cause of Action. The petition examined, and held not to violate the rule that it must be framed upon a definite theory, and that upon such theory the facts alleged must state a good cause of action.

2. EQUITABLE RELIEF--Doctrine of Clean Hands--Wrong of Complainant--Barring Relief Must Relate to Equity Sued For. It is not every willful and reprehensible act that will preclude a litigant in a court of equity from obtaining relief prayed, but such conduct, under the principle involved in this maxim, must bear an immediate relation to the subject-matter of the suit and in some measure affect the equitable relations subsisting between the parties to the litigation and arising out of the transaction.

3. SAME--Right of Recovery--Evidence. The evidence examined and no conduct of plaintiff shown which would preclude his right of recovery.

R. P Evans, George Clammer, both of Manhattan, J. V. Humphrey, and A. S. Humphrey, both of Junction City, for the appellants.

Hal E. Harlan and A. M. Johnston, both of Manhattan, for the appellee.

OPINION

HOPKINS, J.:

The action was for rescission of a contract to convey real estate. Plaintiff prevailed, and the defendants appeal. The history of the case is told by the trial court's findings of fact, which are substantially as follows:

1. The plaintiff, Thomas Brooks, was a farmer living near Manhattan, Kan. The defendants, P. J. Weik and P. F. Dodson, were copartners engaged in the real-estate business in Manhattan.

2. In the latter part of the summer or early fall of 1918, the plaintiff listed Lots 349 and 350 in Ward One in the city of Manhattan with the defendants for sale or exchange at the price of $ 50,000, agreeing to pay the defendants the usual and customary commission for their services as agents in the event that a sale or exchange was effected through the efforts of the defendants.

3. The usual and customary commission of real-estate agents in and about the city of Manhattan for services performed as agents in the sale or exchange of real estate is 2 1/2 per cent of the sale price of the property disposed of.

4. There is located on said lots a two-story brick building known as the Barber Building, which was of the reasonable value of $ 50,000. The building was at all times, since December, 1919, occupied by various tenants.

5. That, pursuant to the employment by plaintiff of the defendants, as his agents in the sale or exchange of said lots, plaintiff had numerous conversations with the defendants relative to prospective purchases and exchanges for said building. That, in the fall of 1918, pursuant to the employment of the defendant, Weik proposed to the plaintiff that he trade said building for a farm owned by one Nicholson. That thereafter said defendant submitted to the plaintiff a proposition of trading said Barber building for a ranch in the state of Nebraska. That no sale or exchange resulted from such negotiations.

6. That plaintiff and defendants had been acquainted for many years prior to November, 1919, and during said time plaintiff had employed the defendants to act as his agents in effecting sales, as well as the disposition for the plaintiff of real estate on several occasions prior to the listing of the real estate and the employment of the defendants herein. That the plaintiff was a close personal friend of the defendant Weik and placed particular confidence and trust in said Weik and relied to a greater or lesser extent upon the judgment of said Weik in negotiations leading up to and culminating in the sales and exchange of real estate theretofore listed with said defendants for sale or exchange, and placed particular confidence and trust in said Weik and both defendants, and relied upon their judgment, in the negotiations leading up to, and culminating in the exchange of the Barber building for certain oil leases covering land located in the state of Texas, and hereinafter mentioned.

7. That after plaintiff employed the defendants as his agents in the fall of 1918, to effect a sale or exchange of the Barber building for the plaintiff, that plaintiff never at any time discharged said agents, nor did the defendants ever cancel such listing or withdraw as agents of the plaintiff.

8. That, in the month of November, 1919, the defendant herein proposed to plaintiff that he, the plaintiff, should trade said Barber building for a large block of oil and gas leases in the state of Texas, and representing to plaintiff that one O. M. Connet was then and there the owner of 30,000 acres of oil leases covering lands located in the counties of Mason and Llano, in the state of Texas. That plaintiff and defendants had numerous conversations during the months of November and December, 1919, relative to the proposed trade, and had numerous conversations with O. M. Connet, during all of which time the plaintiff understood and believed that the defendants were acting as his agents. That the plaintiff was wholly unacquainted with the location of said oil and gas leases and the nature and extent of development, if any, near said leases, and was wholly unacquainted with the value of the same. That plaintiff, during the negotiations, expressed a desire to go to the state of Texas for the purpose of making an investigation of said leases, but was advised by the defendants herein that said O. M. Connet had another prospective purchaser for said leases, and would not wait for the plaintiff to make a trip to Texas, and represented to plaintiff that plaintiff could rely upon the statements and representations made concerning said leases, and that plaintiff would find everything to be as represented.

9. That the defendants and O. M. Connet represented fraudulently to the plaintiff that said 30,000 acres of leases were in a solid block, approximately square, that there was a well drilling within four or five miles of these leases, and that said leases were of the actual value of $ 1.50 or $ 2 per acre.

10. That defendants represented to plaintiff that they had secured a proposition from O. M. Connet to the effect that said Connet would trade the plaintiff said 30,000 acres of leases for the Barber building and $ 10,000 in cash. That thereupon, the plaintiff becoming interested in such sale and exchange of his real estate for the Texas oil leases, instructed and advised the defendants, as his agents, to confer with said O. M. Connet and secure, if possible, a better trade for the plaintiff, and also instructed the defendants to offer said O. M. Connet a counter-proposition, of the Barber building and $ 5,000 for the leases. That after plaintiff had made such offer of the exchange of his property for the oil leases, the defendants reported back to the plaintiff that said O. M. Connet would not accept the counter-proposition, made by plaintiff; whereupon plaintiff instructed and advised the defendants as his agents to raise the offer to $ 7,500 cash difference. That thereafter, defendants advised plaintiff that they had so advised the said O. M. Connet, and said Connet would not take less than $ 10,000 in addition to the Barber building for his said leases. That the negotiations herein mentioned covered a period of two or three weeks, and finally resulted in the execution of a written contract, dated December 24, 1919, between the plaintiff as one of the parties, and the said O. M. Connet as the other party, in which contract plaintiff agreed to convey said Barber building and execute his promissory notes aggregating $ 10,000 to the said O. M. Connet, in exchange for 30,000 acres of oil and gas leases covering lands located in Mason and Llano counties, Texas. That immediately upon the signing and execution of said written contract, the plaintiff made, executed and delivered his promissory notes, payable to the order of said O. M. Connet, two in the sum of $ 2,500 each, one in the sum of $ 5,000.

11. That the Barber building was encumbered by a mortgage indebtedness in the aggregate amount of $ 30,000.

12. That on the 18th day of January, 1920, the defendant, pursuant to the agreement made and entered into by and between the plaintiff and said O. M. Connet, delivered to plaintiff oil and gas leases covering something over 30,000 acres of land in Mason and Llano counties, Texas, and on January 30, 1920, plaintiff and his wife, Ida R. Brooks, made, executed and delivered to O. M. Connet, lots 349 and 350 in Ward One, in the city of Manhattan, Riley county, Kansas, for an express consideration of $ 50,000, subject to mortgage liens aggregating $ 30,000.

13. That on or about the first week in January, 1920, the defendant, P. J. Weik, sold and rediscounted the $ 5,000 note of plaintiff, made, executed and delivered to O. M. Connet on the 24th day of December, 1919, to the Farmers State Bank of Clay Center, Kan., and received in exchange therefor United States Liberty Loan Bonds of the par value of $ 5,000 and on or about the same date, said P. J. Weik sold and rediscounted one of the $ 2,500 notes made, executed and delivered by the plaintiff on the 24th day of December, 1919, to O. M. Connet, to the Leonardville State Bank of Leonardville, Kan., receiving therefor the sum of $ 2,400. That in the latter part of February, 1920, the defendant, P. J. Weik, sold and rediscounted the other $ 2,500 note made, executed and delivered by the plaintiff to O. M. Connet on the 24th day of December, 1919, to one Bert Walters, receiving therefor the...