Duncan v. Holder
| Decision Date | 28 February 1910 |
| Citation | 107 P. 685,15 N.M. 323,1910 -NMSC- 014 |
| Parties | DUNCAN v. HOLDER et al. |
| Court | New Mexico Supreme Court |
Appeal from District Court, Chaves County; before Justice W. H Pope.
Action by Frank M. Duncan against S.W. Holder and others. Judgment for plaintiff, and defendants appeal. Affirmed.
Where a nonresident witness voluntarily appeared at the trial, an allowance of mileage for the distance actually and necessarily covered by her in traveling within the territory going to and returning to the place of trial was proper The appellee (plaintiff below) alleged in his amended complaint that for some time prior to July 20, 1907, he was the owner of certain land in Chaves county, and had placed same in the hands of the appellants, as his agents, for sale that on July 20, 1907, the appellants informed him that they had a purchaser for said land, one M. C. Swinney, for the sum of $5,400, when in truth and in fact said purchaser had agreed to pay and did thereafter pay the appellants the sum of $6,840 for said land; that the said appellants, falsely and fraudulently concealing the fact from him that they had found a purchaser at $6,840, the appellee relying on their said representation that $5,400 was the best price they could get for him, accepted said sum and paid them a commission of $270 thereon; that the appellants converted the difference in price to their own use; and for that difference, together with the commission paid them, appellee demanded judgment against said appellants. The appellants answered, denying that they had ever been plaintiffs agents for the sale of said land, and that they had ever sold it for $6,840, or any other sum, or that they had ever received or converted to their own use any sum of money belonging to the appellee, and further answering, by way of new matter, they allege that they bought the said property of the appellee for themselves and on their own behalf for the sum of $5,130, and exhibited a contract dated July 27, 1907, executed by the appellee, by which he agreed to transfer said real estate to appellants or whoever they might name, for the sum of $5,130, upon payment to him of $3,000 cash and the balance by note executed by appellants and secured by a mortgage back. To this answer the appellee filed an amended reply denying the allegations of new matter, but admitting the execution of the contract therein set forth, but alleged that he had executed the same upon the false and fraudulent representations of the appellants that they could only obtain the sum of $5,400 for said land, when they had at the time already sold the same for $6,840, and that said statements were made for the purpose of defrauding appellee. It appeared in evidence at the trial that the appellants did sell said land for the sum of $6,840, and that they received therefor the sum of $200 in cash and the balance of $6,640 in unsecured notes, and that at the time of the trial there remained due, of the balance of the purchase price represented by notes, the sum of $4,000. A trial was had to the court and a jury, and a verdict returned in favor of the appellee for the sum of $1,710, interest and costs, which sum represents the full amount prayed for by him. Motions for a new trial were made and overruled, and this appeal was taken.
Richardson, McClure & Heflin, for appellants.
Eden & Bowers, for appellee.
MECHEM J. (after stating the facts as above).
1. It is claimed by counsel for appellants that the evidence in this case clearly shows that the relations of principal and agent did not exist between them and appellee. We have carefully examined the evidence in the record, and are of the opinion that it was sufficient on the question of agency to support the verdict of the jury, so that the same will not be disturbed, nor the judgment for that reason reversed. Green v. Brown & Manzanares Co., 11 N.M. 658, 72 P. 17.
2. The court instructed the jury that the limit of appellee's recovery, if they found him entitled to recover, would be the difference between the price that he received for the property and the price that the appellants received for the same; but the appellants claim this to be a wrong measure of their liability, and say that it should have been the difference between the value of what appellee received for the land and a fair market value of the land at the time he parted with it, citing cases in support thereof, which we have examined, and find them all to be cases wherein a vendor had parted with his property in exchange for other property, the condition, quality, and value of which had been fraudulently represented by the purchaser, and the vendor, electing not to rescind the contract, sued for damages. In those cases the courts held that the measure of damages would be the difference in value of what the vendor received in trade and the fair market value of the property that he gave in exchange therefor. The rule is entirely different where a principal sues his agent for money had and received by the agent from a sale of the principal's property. The value in such cases is quite immaterial, for the reason that the agent is not employed with regard to the value of the property, but by the terms of his employment he is charged with the duty of selling it at a price fixed by his principal, irrespective of its value, and the law places upon the agent his duty to account to his principal for any advantage which he may secure in the line of his employment; that is, even if the property is placed in the agent's hands to sell at a certain price, and he receives a greater price, he is bound to account for it. Collins et al. v. McClurg, 1 Colo. App. 348, 29 P. 299; Bassett v. Robers et al., 165 Mass. 377, 43 N.E. 180; Helberg v. Nichol et el., 149 Ill. 249, 37 N.E. 63.
3. The appellants contend that the appellee is not entitled to recover the sum for which he received judgment, because, it is shown in the evidence, that they sold the land on time that at the date this case was tried the remained due and unpaid on their sale to Swinney the sum of $4,000; that the appellee had received the sum of $3,000 cash, being more than they had received in cash; that, if he did not elect to rescind the contract, he necessarily elected to ratify it, and should abide by it; that therefore, they not having received cash, but notes, it was the duty of the appellee to prove the value of those notes, and his recovery is limited to that value; and that the court should have so instructed. It will be observed that by the pleadings the appellants did not raise this question, that they did not make a tender of the notes, and this we take it, being clearly a matter of defense on their part, they should have seen to it that their pleadings provided therefor. They stood on the sole proposition that they were not the appellee's agents, and that the...
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