Synnott v. Shaughnessy

• Decision Date: 02 March 1885
• Citation: 7 P. 82,2 Idaho 122
• Parties: SYNNOTT v. SHAUGHNESSY
• Court: Idaho Supreme Court

7 P. 82

2 Idaho 122

SYNNOTT v. SHAUGHNESSY

Supreme Court of Idaho

March 2, 1885

SALE-AGENCY-FIXED PRICE.-If A and B own a mine and authorize C to sell it for them, or bring them a purchaser at a fixed price, with the understanding that C is to have all he can get above that price, C may make the best bargain he can with anyone; he may purchase it himself, and is under no obligation to disclose to A and B anything he may have discovered concerning the mine after such arrangement is made.

(Above syllabus by the court.)

AGENCY-COMMISSION FROM BOTH PARTIES.-If an agent act openly and with the consent of both owners and purchaser, he may contract for and receive a commission from both.

APPEAL from District Court, Alturas County. Affirmed.

Affirmed.

Angel &amp Sullivan and John R. McBride, for Appellants.

It is not sufficient to find upon a probative fact, from which it might be argued that the court below was of a certain opinion as respects one of the ultimate facts. (Pacific Bridge Co. v. Kirkman, 54 Cal. 558; Kahn v. Smelting Co., 102 U.S. 641; Biddell v. Briggs, 56 Cal 374; French v. Edwards, 21 Wall. 147; Crews v. Brewer, 19 Wall. 70; Marsters v. Lusk, 61 Cal. 146; Lang v. Specht, 62 Cal. 146; Dunn v. Dunn, 62 Cal. 176; Hayne on New Trial and Appeal, 727, 732.) "Whenever the interposition of a middleman or go-between is used to effect a contract there brokerage exists." (Wharton on Agency, sec. 697; Story on Agency, secs. 28, 31, 109.) Brokerage is agency. (Wharton on Agency, supra; Story on Agency, supra; Brown v. Pforr, 38 Cal. 550; Paley on Agency, 13; Bouvier's Law Dictionary, tit. "Broker"; Burrill's Law Dictionary, tit. "Broker"; Paley on Agency, by Lloyd, p. 171, note. "An appropriation of the fruits after wrongful act of an agent is a ratification of such act, and makes the party liable to the same extent as if his acts had been expressly authorized. " (Murray v. Beninger, 3 Keyes, 107; Cro. Eliz. 827; Craig v. Ward, 3 Keyes, 387; Waterman v. Dalley, 51 N.Y. 341; Garner v. Mangam, 93 N.Y. 643; Lee v. Sandy Hill, 40 N.Y. 488; Kerr on Fraud and Mistake, 111, 112, 137; 1 Parsons on Contracts, 73; Story on Agency, secs. 308, 452, 456; Krumm v. Beach, 96 N.Y. 404, 405.) "When a purchaser enters into any side contract or arrangement with the agent or broker of the seller, unknown to the latter, by which they mutually or either of them procure a benefit to themselves, such an arrangement per se renders the sale fraudulent and avoids it at the option of the seller." (Wharton on Agency, secs. 244, 245; Story-on Agency, 5th ed., sec. 211, and note 2; Ballam v. Loomis, 3 Cent. L. J. 263; Bigelow on Fraud, 227, 228, 229; Moore v. Mandelbaum, 8 Mich. 433.) Any unfairness, any underhanded dealing, any use of knowledge not communicated to the principal by an agent, any lack of perfect good faith which equity requires, renders the transaction voidable, so that it will be set aside at the option of the principal." (Bigelow on Fraud, supra; Pomeroy's Equity Jurisprudence, sec. 954, p. 486; Michaud v. Girod, 4 How. (U. S.) 503; Norris & Foltz v. Taylor, 49 Ill. 17, 95 Am. Dec. 568; Marye v. Strause, 2 Morr. Min. Rep. 244; Kerr on Fraud and Mistake, 175, 176, 195.)

Rosborough & Merritt, for Respondent.

The omission of the court to make findings upon immaterial matters was not error. (Lucas v. San Francisco, 28 Cal. 591; Miller v. Steen, 30 Cal. 402, 89 Am. Dec. 124, and note; Caldwell v. Brooks, 28 Cal. 151.) A finding of fact by the lower court will not be disturbed by the appellate court, when the evidence was conflicting, or where the conclusion drawn from it is not necessarily erroneous in point of law. (Lewis v. Covilland, 21 Cal. 178.) An appellate court will not set aside the findings and grant a new trial on the ground that the findings are not warranted by the evidence, unless the evidence was such that if the questions were submitted to a jury, the court would set aside the verdict as contrary to evidence. (Moore v. Murdock, 26 Cal. 514.) To set aside a contract on the ground of misrepresentation, it must be something material, constituting some motive to the contract, something in regard to which reliance is placed by one party in the other, and by which he is actually misled, not a matter of opinion merely, equally open to the examination of both parties. (Smith v. Richards, 13 Pet. 29; Harris v. Tyson, 24 Pa. St. 347, 64 Am. Dec. 661.)

MORGAN, C. J. Broderick, J., concurred. BUCK, J., Dissenting.

OPINION

MORGAN, C. J.

The cause was tried before the court at the June term, 1883, of the district court for Alturas county. Judgment was for the defendant and the complaint dismissed. Plaintiffs moved for a new trial, and the motion was denied. Plaintiffs appeal both from the judgment and from the order denying a new trial.

The case shows that on the fifth day of July, 1881, the plaintiffs were the owners and in the possession of the Eureka mine, situated in Mineral Hill mining district, in Alturas county, in the territory of Idaho. On the said fifth day of July, 1881, the said defendant, by his agent, E. A. Wall, purchased the said mine from the plaintiffs John Synnott and Peter Welch for the sum of $ 2,200; that on the same day plaintiffs executed and delivered to the defendant a good and sufficient deed of conveyance. On the twenty-fourth day of May, 1882, the plaintiffs bring this action and ask the court to declare this deed fraudulent, null, and void, and set it aside and put the plaintiffs again in possession of said property. Plaintiffs aver: 1. That on the third day of July, defendant, by his agents and employees, discovered on said Eureka claim a large and valuable vein or body of ore, from eighteen inches to four feet in thickness, extending about seventy feet continuously along said vein, which rendered said claim of great value, to wit, of the value of $ 100,000. Defendant denies. 2. Plaintiffs aver that defendant, by his agents, fraudulently and falsely concealed the said vein or ore body from the plaintiffs. Defendant denies. 3. Plaintiffs aver that defendant, by his agents and servants, falsely and fraudulently represented and stated to these plaintiffs that no other ore body, or vein of ore, existed in said mining claim, except such as were found by and known to these plaintiffs, as shown in their own tunnels as aforesaid, when defendant well knew, etc., that said vein did exist. Defendant denies. 4. Plaintiffs aver that said false and fraudulent representations were made by defendant's agents and servants to plaintiffs, to induce them to sell said mining claim at far below its real value, to wit, for the sum of $ 2,200; and that said false and fraudulent representations, so made by the agents and servants of defendant, did induce plaintiffs to believe that no such ore body existed, and that said mining claim was not worth more than $ 2,200, and that said plaintiffs were thus induced to sell and convey said claim for said last-mentioned sum, when, in fact, said claim was then worth $ 100,000. Defendant denies. 5. That immediately prior to the discovery of said ore vein or ore body the said plaintiffs had employed one Harry Porter as agent to find them a purchaser for said mining claim, at the price of $ 2,500, and that, relying upon the honesty of said agent, they agreed to give said Porter ten per cent of said purchase price as a compensation. Defendant denies. 6. That while so employed the said Porter first made the discovery of said vein and ore body aforesaid, which was unknown to plaintiffs. Defendant denies. 7. That said Porter concealed the same from plaintiffs, and surreptitiously, fraudulently, and collusively, and for the consideration of $ 1,000, informed the said defendant of the existence of said large vein or ore body, and undertook and agreed to conceal the same from plaintiffs, and to assist said defendant in the purchase of said Eureka claim at $ 2,000 or a price greatly below its real value; that by such fraudulent acts of said Porter, as well as the misrepresentations and concealments, they were induced, etc. Defendant denies. These are all the material issues raised by the pleadings. Upon substantial affirmative proof of all the material averments of fraud on the part of either Wall, the agent of defendant, or on the part of Porter, alleged to be their own agent, plaintiffs claim the right to recover. If they have failed in both, the case fails. The principal errors assigned are: 1. That the court has failed to find on all the material issues; 2. That the findings are not supported by the evidence; 3. That the findings do not support the judgment.

The first two propositions are so interwoven and intimately connected that they will be discussed together. The first material issue is, Did the defendant, by his agents and servants, on or about the third day of July, 1881, or before the sale, find a large and valuable vein or body of ore, from eighteen inches to four feet in thickness, extending about seventy feet continuously along said vein, which rendered the mine of great value? In reply to this, the court, in its finding of fact No. 12, say: "The evidence does not show or tend to show that Wall or Porter, or any other person, had discovered or knew of the existence of any vein or lode of ore in place on the Eureka mining claim, other than such as had been found by and was known to Synnott and Welch (the vendors) in their excavations at any time prior to the sale and execution of the deed." Objection is made to the use of the words, "the evidence does not show or tend to show." The fact that they had discovered the vein or lode of ore in question before the sale must be proven by the evidence. If the evidence does not show it, nor tend to show it, then, so far as the...