Deter v. Jackson

The opinion of the court was delivered by Johnston, C. J.: This was an action by G. H. Jackson and Belle Jackson to recover money alleged to have been fraudulently obtained and withheld by Deter & Jaillite, real-estate brokers, who had negotiated a sale of the Jackson farm. In thé original petition the Jack-sons alleged in effect that Deter & Jaillite undertook to sell the Jackson farm at a price of $4000, in which event they were to receive as commission $125, but if that price could not be obtained and it should have to be sold for $3900 their compensation for the sale would be $100. It was also alleged that they negotiated a sale to W. D. Houcke for $4000, but that they falsely and with the purpose of cheating and wronging the plaintiffs represented to them that they had sold the farm for only $3900, and to carry out the deception that sum, instead of $4000, was named as the consideration in the contract of sale and deed to Houcke, and [570] that the defendants collected from Houcke $100 of the consideration and converted it to their own use and collected another $100 as commission from the plaintiffs on the false representation that they had sold the farm for only $3900, and further' that the fraud was not discovered until about a month after the transaction occurred. The petition closed with a prayer for judg•ment for $75. The defendants filed a general denial, and the trial which followed resulted in a verdict for plaintiffs, but for some reason this was set aside and a new trial granted. Before the next trial the plaintiffs obtained permission to amend their petition, and alleged that by reason of their fraudulent conduct the defendants had forfeited any commission or.compensation whatsoever for the sale of the farm and that the plaintiffs were entitled to recover from the defendants $200, for which they asked judgment. In their answer to the amended petition the defendants denied the allegations of fraud and alleged that $3900 was the full consideration for the sale of the land. On a second trial the verdict was in favor of the plaintiffs, but this too was set aside, and on the third and final trial the plaintiffs recovered a verdict for $200, which included the $100 of the consideration wrongfully withheld and the $100 paid as commission and forfeited by the fraudulent conduct of the defendants. They complain and assign as error the ruling permitting plaintiffs to amend their petition and to ask for a forfeiture of the commission and the increased amount. Under section 139 of the civil code (Gen. Stat. 1901, § 4573), which authorizes a court, in furtherance of justice, to allow the amendment of any pleading when it does not change substantially the claim or defense, the court was justified in permitting the amendment in this case. In fact the amendment was little more than a demand for a larger recovery. The facts justifying the increased demand were fully pleaded in the orig [571] inal petition. The misrepresentations and fraud of defendants, which formed a basis of any recovery in the case, were set out in both petitions. The evidence to sustain a recovery under the original petition was competent and substantially the same kind of evidence as was required to establish the right of recovery and the larger demand under the amended petition. The matter of amending'pleadings rests largely in the discretion of the trial court, and unless there has been a clear abuse of discretion its rulings will not be disturbed. (Rogers v. Hodgson, 46 Kan. 276, 26 Pac. 732.) It cannot be said that the court’s discretion in permitting the amendment in this case was unwisely exercised. Nor did the act of the plaintiffs in asking for a judgment of $75 in the original petition ratify the fraudulent transactions of defendants, or prevent plaintiffs from finally asking for the full amount to which they were entitled under the facts pleaded. The sufficiency of the evidence is questioned, but it abundantly shows misrepresentation of facts, concealment of the consideration actually received for the land, and the fraudulent retention of $100 of that amount. The defendants were bound to account to the Jacksons for the full amount received for the farm, and by their fraudulent representations -and conduct they forfeited the claim to any commission for the sale of the land. Having abused the confidence of their principals and committed fraud upon them, thé law justly deprives the agents. of any compensation for their services in negotiating the sale. (Jeffries v. Robbins, 66 Kan. 427, 71 Pac. 852.) The instructions of the court fairly stated the law applicable to the facts brought out by the evidence, and no error is seen in any of the court’s rulings. The judgment is affirmed.