Garner v. Woods

• Decision Date: 17 February 1930
• Docket Number: No. 4620.,4620.
• Citation: 24 S.W.2d 708
• Parties: GARNER v. WOODS.
• Court: Missouri Court of Appeals

24 S.W.2d 708

GARNER v. WOODS.

No. 4620.

Springfield Court of Appeals. Missouri.

February 17, 1930.

Appeal from Circuit Court, Barry County; Charles L. Henson, Judge.

"Not to be officially published."

Action by Robert E. Garner against D. C. Woods. Judgment for plaintiff, and defendant appeals. Affirmed.

Chas. R. Landrum, of Mt. Vernon, and James E. Sater, of Monett, for appellant.

BAILEY, J.

This is a suit to recover damages for alleged breach of faith by a real estate agent toward his principal, the owner of certain lands. The suit originated in Lawrence county, but was transferred to Barry county on change of venue. Plaintiff obtained a verdict and judgment, from which defendant has appealed. Plaintiff has not favored this court with a brief.

The petition in this case charges that plaintiff was, on the 17th day of March, 1927, and prior thereto, the owner of a certain 40 acres of land in Lawrence county, Mo.; that defendant was at that time the loan agent of the Shartel Mortgage Company and had acted for it in placing a $1,000 loan on said land, for which he received a $70 commission note, secured by a second mortgage on this land; that thereafter, $130 interest became due on said loans, which plaintiff was unable to pay; that about a month before the 17th day of March, 1927, he went to defendant and requested him to sell the said land for plaintiff at the best price he could obtain above the mortgage indebtedness, which defendant agreed to do for plaintiff; that through defendant's efforts, on said 17th day of March, one R. D. Kirby agreed with defendant to give the price of $1,800 for said land, deducting the incumbrance of $1,200; that plaintiff was wholly ignorant of said offer and the same was not disclosed to plaintiff by his agent, the defendant; that defendant, in order to cheat, wrong, and defraud plaintiff, concealed the offer from plaintiff and told him he might as well sell the land to defendant; that he (the defendant) would give him $30 for his equity, and, if he did not sell it, the mortgages would take it and he would receive nothing; that plaintiff, believing said statements to be true and being unaware of said offer, was induced thereby to make, and deliver to defendant, a deed conveying said land on said 17th day of March, 1927; that thereafter on the same day defendant executed and delivered to said Kirby a warranty deed to said land for $1,800, netting defendant a profit of $600 on said fraudulent transaction, which should have gone to plaintiff and for which he prays judgment. Defendant filed a general denial. Plaintiff's judgment was for $300.

It is first assigned as error that the petition fails to state a cause of action. This point seems not to be seriously pressed. While the petition may be subject to criticism, if construed purely as an attempt to recover damages for fraud and deceit, it certainly states a cause of action based on breach of trust by the agent toward his principal. It is said that: "An agent cannot serve two masters. If he undertakes to act for himself, and at the same time for his principal, and reaps an advantage by his double dealing, the law will take it from him, unless the principal, knowing all the facts, has allowed the agent to so change his condition that he cannot be put in statu quo, and thus make it inequitable to rescind the contract." Euneau v. Rieger, 105 Mo. 659, loc. cit. 675, 16 S. W. 854, 858.

We consider this an action seeking to require an agent to return to his principal the profit he made by reason of a breach of trust. Under such circumstances fraud is not a necessary element. Herron v. Smith (Mo. App.) 285 S. W. 544. The petition, as we view it, states a cause of action, particularly after verdict.

Some point was made that the evidence showed plaintiff was not the real party in interest in this lawsuit, but, since he held the legal title to the land, he had the right to sue.

Swift & Company v. Railroad, 149 Mo. App. 526, 131 S. W. 124. Moreover, that question was submitted to the jury by defendant's instructions, and we are bound by the verdict.

It is urged that defendant's instruction, in the nature of a demurrer to the evidence, offered at the close of the whole case, should have been given. In considering this point we are required to accept as true all evidence favorable to plaintiff, together with such reasonable inferences as may be fairly drawn therefrom, in support of plaintiff's case. The record contains substantial evidence tending to prove that defendant became plaintiff's agent for the sale of the 40 acres of land in question. This employment occurred...