Hewitt v. Young

Gbangeb, J. I. Let us first look to the situation of the parties under the written contracts, and then 1. principai. and ' Sawntyagent. inquire if it is changed by the other evidence, ofd: and, if so, to what extent. Under the contract the defendant with Rickard first made, there is nothing to .indicate that either party to the contract then thought of the defendant’s becoming the purchaser; for by it he was to render “ services,” and was to receive a “commission” for effecting a sale. It is likely true that it would have been immaterial to Rickard whether the defendant furnished the money and took the title to himself, or procured a purchaser, and the purpose of the present inquiry is only to show the then intention of the defendant. When the time was extended, February 3, 1887, it seems to have been contemplated that the defendant might do one of two things, — purchase the land himself,’ or “find a purchaser.” Looking next to the contract between the plaintiff and the defendant, we find that Mr. Young has there agreed “that he will procure the purchase for and the conveyance to Mr. Hewitt of the premises in question.” The language to us is quite unmistakable, that the defendant then undertook an exercise of his right under his agreement with Rickard to procure a purchaser, and that then he was not then attempting to [229] sell any right lie possessed in the land. His only right was that oí procuring a purchaser or buying himself. The latter he did not attempt. He agreed with the defendant to purchase the land for him at an agreed price, which, without explanation, would be understood as the price to be paid to Rickard. There is nothing in the written contract to indicate that the land was purchased from the defendant, or that any part of the purchase price was to go to him. The appellee attaches importance, in this connection, to the fact that two hundred dollars was paid by bim to Rickard when the time was extended, February 3, 1886, and treats it as a payment of a part of the purchase price of the land. Looking to the language of the agreement under which the two hundred dollars was paid, we find that it is not a payment on a purchase by the defendant, but, “in case said Young shall buy said land or find a purchaser,” it shall be applied as part payment. Of course, if he found a purchaser, he would be entitled to a return of the money in closing the transaction. The two hundred dollars were paid by the defendant to secure moré time in which to purchase or find a purchaser, with the right, if he succeeded, to have it applied for his benefit. Upon the face of the contracts in writing the question is not a doubtful one. Looking, then, to other evidence to aid in a correct interpretation of them, and we find very little, if anything, to aid appellee’s theory of the transaction. Importance is attached to some detached statements, in the correspondence'had before the written contract was made, as that the defendant offered to sell the plaintiff the land, but the correspondence shows the offer or statement to have been such as is made by agents generally selling land for the owner, and means nothing more than that they are intrusted with or have the sale of the land. Barring some such expressions, and the substance of the correspondence preceding the contract is in support of our view of the written contract. It is strenuously urged that the defendant was not the agent or partner of the plaintiff in the purchase of [230] the land, bnt that the partnership, by the terms of the-contract, was to commence after the purchase, and, for the purpose of the case, we may assume that to be true in its technical sense (though we must not be understood as so holding), and what is the situation of the case on the face of the contract ? It is this: The plaintiff and the defendant have agreed upon a partnership in the division and sale of the premises. The premises-are to be purchased for that purpose, and owned by the plaintiff; and the defendant is to make the purchase for him for a stipulated price. The appellee’s purpose in denying the agency and partnership is to make way for a right to claim this difference in the price actually paid for the land and that which plaintiff supposed he was paying. Is there any legal name or significance to be attached to the apparent position or capacity in which the defendant acted to justify such a right? None, unless in legal contemplation the defendant was the vendor; and to so hold is to violate the letter and spirit of the contract. To our minds, the actual facts controlling the action of the parties in the purchase of the land are these: The defendant did not design to purchase the land. He sought the plaintiff as a purchaser. He represented the value of the land to be twenty thousand, five hundred and sixty-two dollars and fifty cents, when he knew it was on the market for thirteen thousand, four hundred and eighteen dollars and thirty-seven cents. He conceived the purpose to speculate to the extent of this difference, less a commission of five per cent., which he offered the plaintiff’ as an inducement to make the purchase. The purpose was secretly reserved from the plaintiff and Hickard. Hewitt purchased the land for what he supposed it to-be offered for in the market, and the defendant, as the result of his secret reservation, profited to the extent of sixty-one hundred and fifteen dollars and sixty-two cents. It needs no argument to show that such a transaction is fraudulent, and a court of equity cannot look with complacence upon it. [231] II. It is urged that the plaintiff is not the real party in interest. In a letter from the plaintiff to the 2. Action: parties in interest: evidence. defendant, written March 23, 1886, it is ’ n ... ’ . ’ said ¡ Inasmuch as the purchase is fco be -L made for the account of Mrs. Hewitt, the title had better be made in my name, and not in that of Mr. Cooper.” The letter was written before the contract was completed. The petition represents the plaintiff as the party in interest, and the proofs show the fact. The contract on which recovery is to be had is made in the name of the plaintiff, and nothing in the case, barring the letter referred to, indicates that the plaintiff is not the real party in interest. The plaintiff should have judgment for the amount of his claim, and the. cause will be remanded to the superior court for that purpose. Reveksed.