Davis v. Metcalf & Haley

• Decision Date: 19 February 1923
• Docket Number: 171
• Parties: DAVIS v. METCALF & HALEY
• Court: Arkansas Supreme Court

247 S.W. 1052

157 Ark. 232

DAVIS v. METCALF & HALEY

No. 171

Supreme Court of Arkansas

February 19, 1923

Appeal from Lawrence Circuit Court, Western District; Dene H Coleman, Judge; reversed.

Judgment reversed, and cause remanded.

Appellant pro se.

The case should have been submitted to the jury on the disputed question of fact as to whether or not the plaintiff agreed to give the defendants all over the sum of $ 1,500. It is the duty of a broker to make to his principal a full, fair and prompt disclosure of all the facts and circumstances affecting his principal's interests. Any advantage accruing to him by violation of this duty must be made good to the principal, and not only so, but he forfeits his compensation also. 126 Ark. 61; 196 Pa.St. 205; 79 Am. St Rep. 702; 62 So. 254; 7 Ala.App. 358; 80 A. 164; 114 Md. 418; 165 N.W. 294; 36 Neb. 869; 55 N.W. 279; 113 P. 1133; 58 Ore 195; 166 Ill.App. 402; 190 Ill.App. 493; 140 N.W. 892; 159 Iowa 424; 169 Ill.App. 456; 178 S.W. 566; 95 Minn. 350; 104 N.W. 543; 2 App. Cases (D. C.) 387; 124 Mich. 417; 46 N.J.Eq. 595; 110 N.W. 1031; 133 Iowa 567. The burden of proof, in such cases, is on the agent to establish his fairness in the transaction. 48 Cal. 215; 1 Hun (N. Y.) 303; 2 Strob. (N. C.) Eq. 262; 22 N.J.Eq. 481. A broker guilty of fraud in executing his agency forfeits his right to commission. 66 Kan. 427; 87 N.E. 70; 80 Kan. 515; 87 A.D. 518; 20 Pa. S.Ct. 369; 92 F. 32, 34 C. C. A. 190; 81 Conn. 623.

OPINION

WOOD, J.

This is an action by the appellant against the appellees. The appellant alleged tat in the fall of 1919 he placed in the hands of Metcalf & Haley, real estate brokers, certain lands for sale. The price fixed for the sale of the land was $ 1,500; that they were to receive ten per cent. commission for making the sale. They sold the land for the sum of $ 1,700, and prepared a deed to the purchaser in which they fraudulently concealed from the appellant the fact that the land had been sold for $ 1,700, and fraudulently represented that they had sold the same for $ 1,500. Appellant further alleged that by reason of the fraud and concealment he had been cheated out of the sum of $ 200, and that appellees were not entitled to retain the sum of $ 150 which he had paid them as their commission. He prayed judgment in the sum of $ 350.

The appellees, in their answer, admitted that they sold the land for $ 1,700, but denied that they were to receive only a commission of ten per cent. of the purchase price. They alleged that, when the land was listed with the appellees, the appellant represented that Wilson Mercantile Company of Imboden had a lien on the land for $ 1,200, which would have to be paid when said land was sold, and that the appellant would have to receive the sum of $ 150 before he would execute a deed to his equity in the land, which was all the interest he owned therein, and that after these two amounts were paid the appellees could have, as their remuneration for selling the land, all it brought over and above those amounts, and that the land was sold under such agreement, and they had settled with the appellant on those terms. They therefore denied that they were indebted to the appellant in any sum.

The appellant testified in his own behalf that he was the owner of 160 acres of land which he listed with appellees to be sold for $ 1,500, and they were to receive ten per cent. commission for making the sale. Appellant ascertained later that appellees had sold his land for $ 1,700. He demanded the $ 200 which appellees had received over the price for which the land was listed, and appellees denied that such was the contract. Metcalf, with whom the appellant had the conversation, stated, "Oh, well, that is some of Mr. Haley's doings. He is in the habit of pulling off that kind of a deal." Witness asked Metcalf what they were going to do about it, and he replied that they would straighten it up. Witness testified that one E. B. Sims and LeRoy Sims were present when they had this conversation, and Metcalf promised that he would settle it. The appellant signed the deed and received $ 50, but didn't know at the time that the place was sold for more than $ 1,500. He afterwards discovered it when Sims came to see about the interest due on the mortgage. Sims then showed appellant the sale contract. Appellant received but $ 150 out of the sale.

There was testimony corroborating the testimony of the appellant to the effect that the appellant listed the land with the appellees to be sold for $ 1,500, and that the appellees were to receive ten per cent. commission for selling the same. Witness A. B. Sims also corroborated the testimony of the appellant as to the conversation with Metcalf after the sale was consummated.

Appellee Haley testified that he and Metcalf were partners in the real estate business, and that appellant listed with them 160 acres of land to be sold for $ 1,500, but afterwards it was agreed that they should receive all they could over $ 1,500. Appellant stated to witness that all he wanted was the sum of $ 150, and the buyer to assume the mortgage on the place in the sum of $ 1,200. Witness detailed the circumstances under which the contract between them was entered into. A contract was introduced in evidence between the appellees and one Sims, showing that the property was sold for $ 1,700. The testimony of the appellant tends to show that he had no knowledge that the contract specified that the land was sold for $ 1,700.

The appellant requested the court to instruct the jury to the effect that, if appellees sold the property for a greater sum than that fixed by the plaintiff, it was their duty to advise him of such fact and to account to him for the excess; that if they concealed from him the fact that they were receiving for the property more than the listed price, and failed to so advise him, they should return a verdict for the appellant for such sum over and above the sum of $...