Pomeroy v. Wimer

Hadley, J. In the spring of 1902 appellee owned twenty-one acres of land near the city of Auburn, known as the Fair Grounds. Appellant Pomeroy was a real estate broker located in Auburn. At the time referred to Wimer authorized Pomeroy to sell the Fair Grounds for $1,000, and directed him to advertise the property in the local papers at his (Wimer’s) expense. The price was subsequently reduced to $750, but in August or September following, no sale having been effected, it was determined by the parties to discontinue the advertisement. Nothing was said at the time as to whether the agency should close or continue, but on separating Wimer said to Pomeroy: “If you get hold of a piece of ground to sell, for which I can turn ^ the Fair Grounds as part pay, let me know.” Appellant Esselburn, a timber buyer, having come across a farm of seventy-five acres, belonging to the Sommers heirs, that was being offered by Michael Boland, as agent, for $30 per acre, and having on it much valuable timber, which Esselburn desired, came to an agreement with Pomeroy that they would buy an option on the farm for thirty days at $30 per acre, and if they failed to sell it before the expiration of the option they would jointly raise the money and pay for it, and take chances on making a profitable sale afterward. On December 9, pursuant to the agreement, Pomeroy, in his individual name, “as agent of unnamed principal,” — 443 — closed the option contract, calling for a warranty deed for the land upon the payment of the balance of $30 per acre, within thirty days, and a forfeiture of the amount paid if the balance was not paid within that time. Appellant Weeks was to have an equal share of the profits if he succeeded in making a sale within the life of the option. Appellant Weeks had never seen the farm, but upon the request of Pomeroy, called upon Wimer, and gave him a description of. the farm, as it had been given to him, and arranged to accompany Wimer out to see it. Wimer took a spade, went over the land, dug into the soil at many places, examined the timber, and within a few days sent out a timber expert to estimate its value, and then with Weeks went to Pomeroy’s office December 13 and entered into a written agreement with Pomeroy for an exchange of the Pair Grounds for the Sommers farm, Wimer agreeing to give $2,400 cash boot, and Pomeroy at the time executing the agreement as “agent of unnamed principal,” and explaining to Wimer that he and others were holding the land for speculative purposes. Deeds were executed^ and exchanged January 12, 1903, in accordance with the contract, but before the exchange Wimer was fully informed as to the beneficiaries represented by Pomeroy and of the amount of their profits in the trade, and made no objection. In May, 1903, Wimer brought this action for damages, on the theory that Pomeroy was his agent to sell or exchange the Fair Grounds for a larger farm, and, having been instrumental in bringing about such a trade, while acting as agent, the plaintiff was entitled to the Sommers farm at the price his agent paid for it, and appellants Weeks and Esselburn, having knowledge of such agency, and having shared equally with Pomeroy in the profits of the trade, were alike and equally liable to account to hinn,. Issues were joined by a general denial and plea of ratification. Verdict and judgment for appellee for $886.20. — 444 — Appellants insist that they were prevented from having a fair trial by an erroneous instruction which the court gave to the jury of its own motion. It was in part as follows: “No. 2. In this case, the undisputed facts show that the defendant James E. Pomeroy was the agent of the plaintiff for the purpose of exchanging his twenty-one acres of land, known as the Fair Grounds, for a larger piece of land, said plaintiff to pay the difference, and said Pomeroy to receive a reasonable commission for h'is services in that behalf. It is also undisputed that, while he was such agent, the defendants Pomeroy and Esselburn discovered that Michael Boland, as agent of the Sommers heirs, had a tract of land consisting of seventy-five and forty-six hundredths acres for sale at the cash price of $30 per acre, and that said Esselburn and Pomeroy procured a written contract or option from said Boland in the name of said Boland, as agent and attorney in fact for said Sommers heirs, and of the defendant Pomeroy, as agent for unnamed principals. * * * It is also undisputed that on December 13, 1902, after obtaining said option, the defendant Pomeroy executed a contract with the plaintiff in which said Pomeroy appeared as agent of unnamed principals, in which contract it was stated that whereas said Pomeroy had contracted with Michael Boland as agent for the Sommers heirs for the land described in said option contract, that said Wimer was to take said land at the agreed price of $3,500, his twenty-one acres to be taken at the price of $1,100, and the balance to be paid in cash. It is also undisputed that said contract was taken for the benefit of said Pomeroy, Weeks and Esselburn; that each was to have an undivided one-third of the profits made upon said option contract; and it is also undisputed that when said defendant entered into said contract with said Wimer for the sale of said land that he was holding said twenty-one acres as agent of the plaintiff for sale under the terms heretofore stated. * * * It is also undisputed that said — 445 — defendants divided said $135.20, over and above said purchase price from said Boland, among themselves; and that they also divided said .twenty-one acres of land, each taking one-third thereof, or seven acres; and that said Pomeroy, before the commencement of this action, sold his seven acres of said land to Andrew Marsh. These facts being undisputed, the burden is on the defendants to show, by a preponderance of the evidence, that at the time the plaintiff entered into said contract with said Pomeroy, at the time he received his deed and paid the purchase money for the land received from Boland and conveyed his twenty-one acres to the defendant Pomeroy, he had full knowledge of all of the facts in relation to said sale, and that the land of said Sommers heirs was of the fair value of $3,500; and that said plaintiff knew, at the time he entered into said contract, and at the time he accepted said deed from said Pomeroy for said Sommers land, and .conveyed his land to said Pomeroy, all of the facts in connection with the transaction, including the fact that the defendants held an option on said land from which they could be released by forfeiting the $5 paid, in case said plaintiff did not take said land within the time provided in said option or the extension thereof.” 1. As shown by the record, there were but two witnesses introduced, and their testimony related to matters wholly immaterial. The plaintiff did not testify, nor give his deposition, though it appears that his deposition was taken and left with his attorney. The evidence, aside from the two witnesses mentioned above, was composed solely of the contracts, deeds, and record of deeds noted in the above introductory facts, and the examination of each of the defendants, taken by the plaintiff before trial under §517 Burns 1901, §509 R. S. 1881. So the court was not wrong in stating'to the jury that the facts relating to Pomeroy’s agency were undisputed, so far as affected by direct evidence. But it was undoubtedly in error — 446 — in stating to the jury what those facts proved. The fundamental fact in the case for the jury to decide was the question of agency, and its character, between the plaintiff and defendant Pomeroy, in the exchange of the Fair Grounds for the Sommers farm, to be determined from the evidence under proper instructions from the court. 2. The complaint charges Pomeroy with being the plaintiff’s agent, and his codefendants with knowledge. The defendants each deny such relation and challenge the proof. The only direct evidence bearing upon such agency arises from the testimony of Pomeroy himself; and, at the expense of repetition, for convenience we reproduce it here. Being a real estate broker in the city of Auburn, appellee, Wimer, in the spring of 1902, requested Pomeroy to find a purchaser for the Fair Grounds for $1,000, and directed its advertisement in the local papers at his (Wimer’s) expense. Subsequently Wimer reduced the price to $750, but in the summer following, no sale having been effected, it was mutually agreed to discontinue the advertisement. Nothing was said at the time whether the agency should close or continue, but on separating Wimer said to Pomeroy: “If you get hold of a piece of ground to sell, for which I can turn the Fair Grounds as part pay, let me know.” He further testified: “My understanding [from the foregoing remark] was that if I found a piece of ground for sale that he could buy on terms that were satisfactory to him, and he could turn in the Fair Grounds as part pay, that he would pay me for turning in the Fair Grounds, and as'to the other real estate, he was to determine for himself whethér it was a satisfactory price.” Having, in the autumn following, acquired, with Esselburn, the Sommers farm, in his first interview with Wimer, Pomeroy told him that he and others controlled the farm; that they were holding it for speculative purposes; that the price on it was $3,500; that they would sell to the first one who would — 447 — pay their price; that he had never seen the land, and knew only what others told him about it; thought it would suit the plaintiff, and that he could put in the Fair Grounds at $1,000. At the time of the interview Wimer had personally inspected the farm; had examined its soil in many places, and inspected the growing timber, and had taken the opinion of a timber expert as to its value. In the written agreement between Wimer and Pomeroy, “as agent of unnamed principal,” is the language, “the first party (Pomeroy), as such agent, does hereby agree to sell to said second party said real estate * * * for the sum of $3,500,” as follows: $2,400 cash, and conveyance of the Eair Grounds. Before the exchange of deeds Wimer was fully informed as to the persons interested in the Sommers farm, the sum paid therefor, and amount of their profits, but asserted that he was satisfied with his bargain. There was no written contract, no agreement as to fee or commission for securing sale or trade, no individual memorandum of agency, no power of sale, purchase, or exchange. All these facts and circumstances, and the natural inferences arising therefrom, were entitled to be considered in determining the true character and scope of Pomeroy’s agency for appellee. 3. The actual relation here shown between the appellee and appellant Pomeroy is so limited and circumscribed as to amount to nothing more than a proposition on behalf of appellee that if Pomeroy would produce a purchaser for his Fair Grounds, or find another piece of real estate for which he could trade the Fair Grounds, he would impliedly be entitled to a reasonable fee or commission for his services. If this was in any sense an agency, it falls far short of being such a one as is governed by the rule the jury was directed, in the instruction, to apply. We agree that it is firmly settled that a confidential agent, with power to sell or to buy can neither buy from himself nor sell to himself without the approval of the principal — 448 — after full information of the facts relating to the transaction. Rochester v. Levering (1886), 104 Ind. 562, 567; Fountain Coal Co. v. Phelps (1884), 95 Ind. 271; Mechem, Agency, §455. 4. But the evidence does not show this to be a case of that kind. Here the business was in no sense confidential. The service of bringing a buyer or trader, if performed by a stranger, would no doubt have been as acceptable to Wimer. (Pomeroy had no power to sell nor to trade the Pair Grounds; did not bind himself to find a buyer or a trader, and in fact did not sell or trade it.') (He acted for Wimer in nothing, at any time, except in announcing his price on the Pair Grounds, and his readiness to trade it for other property, and in thus soliciting a customer. Ho one acted for appellee in trading for the Sommers farm. He was his own principal and agent. He went with Weeks to see the land, examined it for himself, tested its soil, procured an expert estimate of the value of the timber, and inquired of its value neither from Weeks nor Pomeroy. He determined that for himself, from the opinion he had from others. And before, the deeds were delivered, and after being fully informed of the cost of the Sommers land and the amount of profits the purchasers were making by the trade, Wimer announced himself as satisfied with his bargain, and proceeded with the exchange of deeds. There is no pretense in this court that he paid more for the land than it was worth, or that he was in any way overreached. In the view most favorable to appellee, it must be said to be very clear, under the facts, that the true character of Pomeroy’s relation to the transactions involved was a question for the jury, and the instruction therefore erroneous. There are other objections to the instruction that we leave unconsidered. Judgment reversed, with instructions to grant appellants a new trial. _