Jines v. Astle

• Decision Date: 19 October 1914
• Docket Number: (No. 649.)
• Citation: 170 S.W. 1081
• Parties: JINES et al. v. ASTLE et al.
• Court: Texas Court of Appeals

170 S.W. 1081

JINES et al. v. ASTLE et al.

(No. 649.)

Court of Civil Appeals of Texas. Amarillo.

October 19, 1914.

On Motion for Rehearing, November 28, 1914.

Appeal from District Court, Ochiltree County; F. P. Greever, Judge.

Action by A. M. Jines and another against William Astle and others. Judgment for defendant Astle for cancellation of the note sued on and for certain damages, and plaintiffs appeal. Reversed and remanded in part, with directions, and affirmed in part.

N. P. Willis, of Canadian, and J. W. Payne, of Ochiltree, for appellants. Crudgington & Works, of Amarillo, and R. T. Correll, of Ochiltree, for appellees.

HENDRICKS, J.

Appropriate to an understanding and a decision of the issues in this cause, we think it is only necessary to state that A. M. Jines sued Wm. Astle and Charles Orr on a vendor's lien promissory note, for the principal sum of $510, and to foreclose the lien on a half section of land situated in Ochiltree county, Tex. Stated briefly, the ownership of this note became ostensibly vested in Jines as the result of a conveyance of the said half section by Cleal to Astle, for which, as a part of the consideration, said Astle executed and delivered the note to Cleal; the latter transferring the same to the defendant, Charles Orr, by written assignment, who in turn transferred said note to plaintiff Jines. Cleal, who resided in Iowa, was the owner of the half section, and F. C. Spencer was a tenant on the land, and, prior to the sale of the land from Cleal to Astle, there was correspondence between Spencer, the tenant, and Cleal, the owner, for the purpose of effectuating a sale of the property to some third party. As a result of the preliminary negotiations between Spencer and Cleal, Spencer had certain negotiations with his brother-in-law, Orr, for the purpose of selling Cleal's land to Orr, Orr executing a $500 check (in whose favor it is not definitely stated), and claimed in this record to have been a prospective purchaser of said property, but, as the evidence discloses, without any written enforceable contract for the purchase of the land, and without the financial ability to consummate the deal upon the terms made by Cleal to Spencer for the sale of the land. After this check had been executed by Orr, also claimed in this record by Jines and F. C. Spencer to have been a forfeit, Spencer enlisted Jines as a real estate agent for the purpose of selling the land at a sum over $5,000 (the excess to be divided between them), which was the amount it is claimed Orr agreed to pay for the land. The defendant Astle, by cross-action, made F. C. Spencer a party to the suit, alleging that Jines, in exhibiting the land, and offering to sell the same to him, represented that the owner's price for the property was $22 per acre bonus (over the amount of 97½ cents per acre, due the state), or a total consideration of $7,040, and that it was agreed that Jines would submit a cash offer of $5,000 for the land, which if accepted by the owner, the defendant would pay to Jines a commission of 5 per cent. as a reasonable commission for his services, further alleging that if the owner of the land should not accept the offer of $5,000 rather than lose the land, he agreed to pay the $22 per acre bonus above the 97½ cents per acre due the state. Appellee Astle also asserts that during the negotiations Jines called to his assistance F. C. Spencer, the tenant, who was living upon the land, as the desirable person to submit the $5,000 offer, and alleges that Jines and Spencer did not submit the cash offer and fraudulently concealed from him the fact that the owner, Cleal, would accept that amount of money for said property, but instead submitted to the owner, Cleal, an offer in the name of Orr only of $5,000, on terms of one-half cash and the balance in three and five years, representing to Cleal, the owner, that Orr was the purchaser; that, pending the execution of title papers, Jines and Spencer stated to Cleal that Orr had sold the land to this defendant, requesting Cleal to make a deed direct to Astle; they further representing to Cleal that the difference of $2,040 was Orr's profit in the deal.

The record discloses that not until after Astle had agreed to take the land did Spencer communicate to Cleal anything in regard to the previous negotiations with Orr relative to the latter's intended purchase of the property; also that, at the time Astle finally agreed to take the land, the defendant, F. C. Spencer, with Jines participating in the transaction, in assisting the trade, executed a written contract, ostensibly obligating himself individually to sell the land to Astle for the sum of $7,040, terms to be agreed upon, Astle placing the sum of $500 with the State Bank of Ochiltree, the agent in escrow, as a forfeit on the trade. Immediately following the execution of this contract, Spencer wrote Cleal in Iowa that the land was sold to Orr, with the claim in this record that Orr had first purchased the land, but had sold it in the meantime to Astle, and contending that the difference between $5,000 and $7,040 was a legitimate profit, denying that either had ever agreed to submit an offer of $5,000 to the owner of the land as the agent of Astle. If they agreed to submit Astle's offer of $5,000 cash, knowing Cleal's price upon the land, it was a fraud upon Astle; and if they were the agents of Cleal, and Spencer, knowing Cleal would accept such an offer, and failed to submit such an offer, it was equally a fraud upon the latter.

Astle recovered a verdict and judgment, canceling the $510 note, and recovered the cash received by Jines and Spencer over the amount in cash received by Cleal.

Astle rather vigorously contends that Jines and Spencer defrauded the owner, whoever he was, when they say:

"Appellants cannot escape the proposition that they assumed a false and untrue position in their relations to the owner of the land in controversy, regardless of whether Cleal or Orr was the owner. If Cleal owned the land, appellants were untrue to him, in that they were authorized by him to sell for $5,000 on terms or $4,800 all cash, while Astle offered $5,000 cash, which they did not submit, but, on the other hand, undertook by claiming to have sold the property to Orr, and that he had resold at a profit of $2,040, to secure deed from Cleal without explaining the real situation to him. * * * So these appellants are cut off by their own crookedness from any real rights of protection in law, equity, or morals. How does this line of conduct in regard to the owner of said land, whoever that was, look when placed along beside the rule that requires of an agent the utmost loyalty and perfect good faith in dealing with his principal? Their every act in connection with this land is branded with the marks of fraud and deception."

As asserted by Astle in other portions of his brief, we concur that Spencer and Jines were the agents of Cleal of Iowa, the owner of the land, in the sense that Spencer owed Cleal an independent duty of making a disclosure of all facts with reference to the transaction. Spencer's agency of Cleal is clearly an undisputed issue in this case; and if, as Astle contends, Jines and Spencer were Astle's agents, for the purpose of submitting the $5,000 offer, then it follows that if they were the agents of the owner, and Astle was sufficiently apprised of that fact, he was seeking to obtain benefits under an agreement he alleges he made with them in attempting to obtain the submission of said $5,000 offer, which in the event of rejection the proposition of $7,040 would stand. If he knew, or had knowledge of circumstances sufficient to apprise him of agency for the owner, Astle's agreement with another man's agent, to submit a less offer than he in reality was willing to give, certainly placed such an agent in a position where he could not faithfully serve two masters, and Astle, in reality, agreed with them that they may assume incompatible and inconsistent duties and obligations. Astle testifies that he was informed by Spencer that the owner of this land lived in Indiana or Iowa, and that he was induced to sign the contract to hold the land. It is conclusive that he knew that Spencer (though Spencer only signed the contract to convey) was not the owner of the land, and if Spencer by signing the contract, was holding the land for him, he knew that the man attempted to be bound was some owner in Indiana or Iowa. Hence he must have known that Spencer was assuming to act for another as the owner of the land, and when Spencer signed the written contract, purporting to obligate himself to convey the property, he knew that Spencer was purporting to act as the owner's agent. This fact is so clear in this record that the trial court could assume its conclusiveness; and therefore, if the issue were proven that Spencer was the agent of the owner of the land, Astle should be denied a recovery.

Upon the question of agency of Cleal, the record shows that Spencer had written Cleal, inquiring of the latter if he desired to sell the land, and, if so, upon what terms, and in a part of the correspondence advised Cleal to have nothing to do with real estate agents; and after receiving the terms of $5,000 on terms, or $4,800 cash, Spencer advised Astle to stay with his price upon the land, and in dealing with Orr assumed to take Orr's check as a forfeit upon the land, and according to his theory binding Orr to Cleal for the land. Astle introduced the testimony of Cleal to the effect that Spencer had the authority indicated in the correspondence to sell the land. We have no doubt but what Spencer was authorized as Cleal's agent to offer the land for sale, and upon the terms indicated; and we are likewise convinced that if Spencer received an offer of $5,000 on terms, or $4,800 cash, it would have been his duty to submit all offers of any prospective purchaser, especially if Spencer assumed to act in dealing...