Thomas v. Newcomb

• Decision Date: 29 December 1923
• Docket Number: Civil 2055
• Citation: 221 P. 226,26 Ariz. 47
• Parties: T. E. THOMAS, Appellant, v. THOMAS F. NEWCOMB and ELDE H. WARD, Copartners Doing Business as NEWCOMB & WARD, Appellees
• Court: Arizona Supreme Court

221 P. 226

26 Ariz. 47

T. E. THOMAS, Appellant, v. THOMAS F. NEWCOMB and ELDE H. WARD, Copartners Doing Business as NEWCOMB & WARD, Appellees

Civil No. 2055

Supreme Court of Arizona

December 29, 1923

APPEAL from a judgment of the Superior Court of the County of Maricopa. F. H. Lyman, Judge. Affirmed.

Messrs Alexander & Christy, for Appellant.

Messrs Bullard & Jacobs and Mr. Frank De Souza, for Appellees.

OPINION

LOCKWOOD, Superior Judge.

This is an action brought by appellees against appellant to recover the sum of two thousand five hundred and sixty dollars claimed by the former to have been received by the latter as their agent in the purchase of certain lands in Maricopa county, which sum sought to be recovered they claim appellant received and retained over and above the actual purchase price of the lands.

The complaint alleges, substantially, that appellees, as partners, employed appellant to act as their agent in purchasing certain lands in Maricopa county, and that by said contract he was to purchase the lands at the best price to be had, consulting his principals from time to time, and advising them of the offers; that he represented to them that as they were strangers the negotiations had best be carried on in his name, for their better protection; that he owned land near those desired by them, and that their purchase would enhance the value of his land. It further alleges that they were strangers in Arizona, and believed and relied on appellant's representations, and that for these reasons agreed the negotiations and contract of purchase should be in his name, and it was so done. Appellant then, acting under said agency, secured a contract in writing for the sale and purchase of the lands described in the complaint at the purchase price of twenty dollars per acre, or twelve thousand eight hundred dollars in all, which contract was duly assigned by him to appellees, and the purchase price paid as set forth in the contract, and an extension thereof. But it is alleged, as a matter of fact, while appellant was acting as agent of appellees, he secured a contract of purchase for said lands at the rate of sixteen dollars per acre, or ten thousand two hundred and forty dollars for the whole, but for the purpose of defrauding appellees, had the written contract drawn to provide for a purchase price of twelve thousand eight hundred dollars, of which the original owner of the property was to receive under the true agreement only ten thousand two hundred and forty dollars, appellant receiving the balance of two thousand five hundred and sixty dollars.

Appellant answered, denying the allegations of the complaint, and alleges substantially that he was not acting as the agent in the purchase of said land, but that he was the owner of an option to purchase the lands, of which he advised appellees and that they agreed to purchase and did purchase said option of him at the price of twelve thousand eight hundred dollars, with full knowledge of the facts, and that said lands were reasonably worth the full purchase price paid.

The action was tried before the court, a jury being waived, and the court rendered judgment on the issues in favor of the appellees and against appellant for the full sum of two thousand five hundred and sixty dollars, being the difference between the price paid by appellees and that which it was alleged the original owner was to receive under the true terms of the real contract, and after the usual preliminaries the case was appealed to this court.

Appellant makes but two assignments of error -- the first being that the complaint alleges appellant was the agent of appellees during and for said purchase, while the proof shows he was acting independently and for himself in said transaction; and, second, that the complaint is insufficient to sustain an action for fraud and deceit, nor was there proof thereof at the trial sufficient to authorize a recovery on such an action; and, further, that neither on such an action nor on one for money had and received could appellees recover more than the money actually received by appellant for his own use and benefit, which the evidence shows to have been only one thousand nine hundred and twenty dollars.

There are, therefore, but two real questions for us to consider: First. Was appellant the agent of appellees during and for the transaction? Second. If he was, and appellees are entitled to any judgment, what was the proper measure of recovery?

The record does not show that the trial court filed any findings of fact. In such a case we are bound to presume that the court made all the necessary findings to support the judgment....