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On September 22, 1882, the appellant also wrote the respondent, in which she gave directions about sending the money, and in which she requested that he would send her $500, without waiting for the deeds to be sent there, signed, and returned again. She also suggested that it would probably have been better if she had sent him a quitclaim deed,-that it would have expedited the affair. The respondent, upon receipt of the appellant's telegram accepting his offer, had Judge J. J. SHAW, of Salem, prepare a deed and forward it to the appellant at Kansas City, for execution, which she did at the time before mentioned, October 3, 1882, and sent it to the respondent by mail. The appellant's counsel contends that at some period between the time the respondent received the appellant's letter of August 31, 1882, and the date of his reply thereto, September 11, 1882, a gentleman by the name of Durbin, who owns land adjoining the said 124acre tract, applied to the respondent to purchase said tract, and thereupon offered to pay therefor the same amount, $6,000, that the respondent paid for all of appellant's lands, including said tract; that, instead of informing the appellant that Mr. Durbin would pay said sum for said tract, the respondent took advantage of the circumstances, and made said purchase, and thereby obtained the other lands, a reversionary seventh interest in a tract of 314.46 acres, subject to the dower right of Mrs. M. L. Savage, a widow lady, and 78.81 acres of timber land, alleged to be worth $2,000, for nothing. There is some contradiction as to the time when Mr. Durbin made said offer, and as to the quantity of land that was included in it. He was examined as a witness in the case, and testified to the following, viz.:
Age, 54 years; occupation, stock-raiser; residence, Wasco county, Oregon. In answer to question 3, he says: "I know the one tract of 124 acres, and know about where the timber land is, and the dower property. They are situated on Salem Prairie,—that is, the dowery and the 124 acres; the other is back in the timber, east of the other property. Q. 4. You may state if you ever had any conversation with the defendant about the purchase of either of those tracts of land. A. I had a conversation with Mr. Savage, I think some time along about the first of September, 1882, about the tract of land,— 124 acres. I came to town and heard Mr. Savage wanted to see me; I inquired and looked for Mr. Savage, and found him on Commercial street. I says, Mr. Savage, I understand you want to see me.' He says, 'Yes. I wanted to know if you want to buy this piece of land or place of Bertha Savage.' I says, I don't know whether I do or not; it is owing to what she asks for it.' 'Well,' he says, what will you give for it?' I asked him how much there was of it. He says, 'There is 125 acres of it.' I studied a bit and says, '1 will give you $5,500 for it;' and he says, 'I don't think she will take that for it.' We talked and had some conversation about that and other matters, and I finally told him that I would give $6,000 for it if he would telegraph and get me an answer in a short time. He said he thought she would take that for it; and agreed to telegraph to her. I saw him a day or two after that, and I asked him if he had telegraphed to her; he said that he hadn't; that he had written to her, that he couldn't explain things to her as he would like to in regard to the fencing and condition the place was in, but he said I need not be uneasy, that I would get the place; that is, that she would accept my offer. I then, some time after that, asked Mr. Savage if he had heard from
Bertha, and he told me that he hadn't. One day I happened to step into the
124-acre tract, did he state to you whether he had the power from the plaintiff to sell the same? A. He did; he said at the time we first talked of the trade he could make me a deed himself, but he would prefer that she would do it. The conversation I had with Mr. Savage in the bank here was in Bush's bank; Mr. Alberts was behind the counter, and I forget who the other man was."
Cross-Examination. Question 9. "State, Mr. Durbin, just what passed between you and Mr. Savage in Mr. Bush's bank, in Mr. Albert's presence, at the time you have referred to. Answer. Well, I asked Mr. Savage if he had heard from Bertha; he said he had, that he was just sending her the money for the land; I says, Mr. Savage, I don't want you to send any money for me, I have got the money myself;' he says, Well, I may let you have it yet;' and the conversation went on; I don't recollect what all was said, but I told him that if he didn't give me an answer in two or three days, that I would telegraph to Bertha not to accept his money for the land; that I would give $8,000 for it; and that I would give him two or three days, I think, to give me an answer. Q. 12. Did you not go to John Savage, Jr., a short time after you found you couldn't get the land, and try to get him to go in with you and help bust up the plaintiff's deed to the defendant for the land in dispute? A. I did not; but I went to John Savage, Jr., and told him what I had offered Mr. John Savage here, the defendant, and what I understood he was getting for what I had offered for the 124 acres, and, as it was a brother's child, that I thought it was his duty to look into it, and told him that anything I could assist him in I would do so, as I always thought a great deal of her father, Lute. Mr. Savage says to me, John Savage has a mortgage on my farm of $2,000, and I am afraid to have anything to do with it.' I told him other men had money as well as John Savage."
The respondent was examined as a witness, and testified that the first conversation between him and Mr. Durbin, in regard to a sale of the land, took place on the seventeenth or eighteenth day of September, 1882, the day before appellant accepted his offer, and that Mr. Durbin's proposition was to purchase all of appellant's lands; that it included the three parcels referred to, the same land respondent purchased from appellant. The court has considered this question of fact fully, and concluded that the weight of the testimony upon the question is in favor of the appellant. Mr. Durbin's testimony seems to be corroborated by the circumstances, and also by the testimony of other witnesses; and while it may not be accurate in all its particulars, or invulnerable to criticism, still I think he made the offer to buy the 124-acre tract of land, and to pay the $6,000 therefor, and that the offer was made before there was any acceptance of respondent's offer made to appellant by the letter of September 11, 1882, and most probably before that offer was forwarded to her. If this be the correct view of the facts, it becomes important to inquire whether the respondent was under any legal obligation to inform the appellant of Durbin's offer for the said parcel of land, before purchasing it himself in the manner he purchased it. Ordinarily, where there is no fiduciary relation between the parties, and no confidence is reposed by the vendor in the particular contract, no duty rests upon the vendee to disclose facts he may happen to know advantageous to the vendor. It is said in 2 Sugd. Vend. 406, that it may be laid down
as a general proposition that trustees who accepted the trusts, unless they are nominally such, as trustees to preserve contingent remainders, agents, commissioners of bankruptcy, assignees of bankrupts or of insolvents, while the distinction remained, or their partners in business, solicitors to the commission, auctioneers, creditors who have been consulted as to the mode of sale, counsel, or any persons who, by being employed or concerned in the affairs of another, have acquired a knowledge of the property, are incapable of purchasing such property themselves, except under certain restrictions. The agency of the respondent only empowered him (1) to collect any and all money due the appellant in the state of Oregon; and (2) to lease or rent any and all lands then owned by her, or in which she had any interest, in said state, collect the rents therefor, and do everything in and about the premises as fully, to all intents and purposes, as she could or would do if personally present; and the question arises whether he, by virtue of such relation, was under any obligation to disclose the fact of said Durbin's offer, when the appellant proposed to him to become a purchaser of the property. Mr. Pomeroy, in his work upon Equity Jurisprudence, § 902, says that "all the instances in which the duty exists, and in which concealment is therefore fraudulent, may be reduced to three distinct classes: The first class includes all those instances in which, wholly independent of the form, nature, or object of the contract or other transaction, there is a previous existing definite fiduciary relation between the parties, so that the obligation of perfect good faith and of complete disclosure always arises from the existing relations of trust and confidence, and is necessarily impressed upon any transaction which takes place between such persons. he gives as examples contracts and other transactions between a principal and agent, a client and attorney, a beneficiary and trustee, a ward and guardian, and the like. "The second class embraces those instances in which there is no existing special fiduciary relation between the parties, and the transaction is not in its essential nature fiduciary; but it appears that either one or each of the parties, in entering into the contract or other transactions, expressly reposed a trust and confidence in the other, or else, from the circumstances of the case, the nature of their dealings, or their position towards each other, such a trust and confidence in the particular case is necessarily implied. The nature of the transaction is not the test in this class." "The third class includes cases where the contract or other transaction itself, in its essential nature, is intrinsically fiduciary, and necessarily calls for perfect good faith and full disclosure, without regard to any particular intention of the parties." And he gives the contract of insurance as an example falling within that class.
The respondent was the agent of the appellant for a certain purpose, but it is doubted whether it was such an agency as is contemplated in the proposition laid down in Sugden, or as comes within the first class of cases mentioned by Prof. Pomeroy. That depends
upon what the reason or foundation of the rule is which incapacitates or restricts the right of the party to purchase the property in such cases. If it is solely because the agent is under an existing contract with the principal to aid and assist him to the best of his ability in the disposal of the property, then I would suppose that a mere agency to rent property, and collect and pay over the proceeds, would not preclude the agent from purchasing it as freely as a stranger might do. The agent, in such a case, does not contract to discharge a duty connected at all with the sale of property. But, if the obligation arises out of the trust and confidence which the relation shows was reposed in the purchaser by the vendor, then it is immaterial whether the authority empowered the purchaser to sell or rent the property. The relation proves a trust and confidence in either case; in the case of attorney and client I apprehend that it would make no difference, if the former purchased property of the latter, whether he was employed in a matter concerning the property, or concerning some other affair of the client; that he would be as much obligated in the one case as the other to disclose every fact that would tend to enhance its value, and that the reason therefor would be the trust and confidence arising from the relation of the parties. But whether from such a character or not, that is certain the reason why a guardian cannot purchase property from his ward; but whether the relation between the respondent and appellant was of such a character or not, their position towards each other was such that a trust and confidence in the particular case is implied. The parties are relatives, the appellant was living out of the state, she had made the respondent her agent as before mentioned, and he was acting in that capacity when the offer of Durbin was made for the property. And I think under those circumstances it was his duty to have informed the appellant of the offer. It is true, she wrote the respondent to make her an offer, but it is evident from the tenor of her letter that she expected to get as much from him as any one else would give. She says in her letter of August 31, 1882: "If she thought ma, could pay her cash for the place, and as much as any one else would be willing to pay for it, she would sell it to her." She did not intend to let it go to any one for less than it would bring, and if the respondent had communicated to her the offer Durbin had made, she certainly would not have accepted the respondent's offer. The tenor of the respondent's letter was calculated to induce her to accept his offer. It contained a statement of the yield of the land that season, and the account was far from encouraging; besides, it conveyed the idea that if he made the purchase, it would be a very slow investment; says, "I will give you six thousand dollars for your whole interest here; at that it would be a good while before I could get my money back." Now, if Durbin had already made him an offer of the same amount of money for the 124-acre tract alone, as I am inclined to believe from the testimony he had, the statement was not candid.