Harvey v. Nolan

*79 NO. 8105 COURT OF APPEAL PARISH OF ORLEANS. STANLEY A. HARVEY versus MRS. W. C. NOLAN, et al. Dlnkelspiel; J. -Dissenting opinloa- By Dinkolspiel; J. This litig'-tion arises from the following facts! Plaintiff olidas tlwt On November 34th, 19Í8, de-fsnl.'nts granted unto him the right to purohase within ninety dt.ys from said date, certain property under the terms uni conditions mentioned in option. jtirther olaims that the option in question was rexisted in Convey'..noe Dock 335, folio 543 on November 35th, }516; further alleges that within the said period of ninety days plaintiff notified defendant of his desire to avail him,elf of the terms of the said option to buy property in question and requested defendants to appear before l'.otury Dreifous to paso s!-id not of sele. Alleging further that defe^nants announced their intention, after at first promising to pass the e,ct of sale, not to be bound by the terms of said option and felled and refused to sign the sot of sale to plaintiff notwithstanding emioabls demand and notwithstanding defendants having been put in default. Alleging further that defendants have undertaken to sign what purports to be an aot of sale of said property to one G. A. Peyrefi :to and have caused the said alleged sale to be reoorded in the Conveyanoe Offioe and force alleging also that said sale is without/ beoause of the registry prior to the time- of the alleged sale of the option in favor of plaintiff. Finally alleging that plaintiff had the opportunity in the event that defendants had performed their obligations under the terms of the said option and had sold the said property to plaintiff, to resell the same for the price and sum of Twenty Five Hundred Dollars, ¡paking a profit faxxiiw out of said option, oof the sum of Six Hundred Dollars and avers further in the alternative in the event that, speoifio performance as herein prayed for is not *81 deoreed in hi? favor that theie should he a Judgment in the sum of Six Hundred Dollars as damages. The prayer of the petition is that defendants be cited and that there be judgment in favor of plaintiff for the sum of Six Hundred Dollars, costs end for general relief. To this petition defendants filed various exceptions, one, wait of jurisdiction rations materias, second for oyer of the notioe of accetjtanoe, third misjoinder of parties, fourth, petition discloses no ot-use of action. These exceptions being referred to the merits answer was filed which substantially xxexXx asserts the following propositions: That during the months of September and October, 1916 defendí jits employed plaintiff as their agent to sell the real estate described in plaintiff's petition; that plaintiff accepted the said agency and undertook to 3ell said property aa agreed and did actually find t. purchaser, one G. A. Psyrefitte, but failed to di ideas to defendants, this fact denying that he had found a purchaser and finrlly obtained defendants' signature to the document and that plaintiff's relation ae agent never terminated and as such agent he oould not under his oontraot Jas terminate same to his own enrichment*, without fully accounting to defendants for his agency and v/hioh he never did. Alleging further that the act of plaintiff was a fraud upon defendants because he failed to give a full disclosure to them and attempted as agent to enrioh himself at defendants expense; further alleging that it was oontrary to the public policy of the State of Louisiana to act in the manner set forth and that it was an attempt by plaintiff to ohange the relation of agent to that of a third person, without rendering an aocount of the agency to defendants and alleging in reconventioh that plaintiff as their agent oolleoted from G. A. Psyrefitte on December 6th, 1916, the sum of $350.00 whioh he had failed to pay defendants^ *82 Wherefore he was no-6 entitled to any commissions J on tills st-.le having noted in fraud of Ills prinolpuls,, rights and oontrary to their best Interest. The prayer Is that plaintiffs suit bs dismissal at his- costs and for judgment in raocnvention in favor of defendant against pl..intiff in the sum of 1)350,UD v/ith interest from Deoember 6th, 1313 until paid, for costs and general relief. Oh the trial of this c/ae .-It-intiff testified that on üóvembor 04gh, 1916, he obtained from the defendant an option v/hioh he identifies -ni which is annexed to his petition. Further testifies tint he exercised the option that was given hli.. «.¡id produced > nd annexed to his testimony said option of the date as stated in his petition and further tesiifiei th-.t the c..-tion was written at hr. II rinoni's Law Offios on his our. letterhead t-nd further testifies that defendants gave him a synopsis of all thj titles of the -property the option ofilled for ^.nd th-t notary Dreífoue examined the title and on January 5th notified defend.r.ta tl.: t he \n.s re.-dy to pass act of sale on January 9th but defendants failed to appear at -che notary's offios and tin. t Mr. Peyrefiite was the purchaser of the property and th-.t he bought under plaintiff's option and was to pay the sum of Twenty Five Hundred Dollars; also testified that he gave in connection v/ith his option to ilr. Us-rinoni, the sum of ten dollars in check. He further testified: Q. A long time prior to the date of this alleged option you noted í'-b Ur. llarinonl's agent, did you not? A. Yea sir, Q. Selling his real property? A, Yea sir. Q. Were you his agent up to the 34th of Jovea'oér? A, Yes sir. *83 Q. You also was given this particular property to sell? X« Tes sir. He further testifies,’ without literally quoting, that Hr. Marinoni had a. lot of vaoant property and that he had sold to Hr. Peyrefitte, forty five feet of the property in question for the sum of Six Hundred Dollars but the Herinonis deolinsd the offer but dsoided to give plaintiff the option whioh he, Myrlnohi, did. 9. Tou know you were under no obligation to buy the property? A. Ho sir. He- wanted mp to sell; said he needed the money, that he owed' the Bank ten thousand dollars and he wanted me to sell the entire property and not a part. <J. Hr. Harvey, did you etfer disolose to Hr. Mrrlnoni that you had en offer of Twenty Five Hundred Dollars for this property? A. I got the offer- oh December 6th for Twenty Five ¡faradmfd Hundred Dollars and X acoepted the offer promptly and I notified Mr. Marinoni I was going to exsroiae ay option. 9. Did you disoloee to Mr. Marinoni you he4 this offer of Twenty Five Hundred Dollars on Deoember 6th? A. Ho sir, Q. You thought you were under no duty wh&teyer to tell Mr, Marinoni what you were getting for this property? A, Ho sir. Q. As you were aoting ae Hr. Marinoni's agent for a long time why didn't you tell him? A, Beoause on Deoember 6th, my agency peased and X considered he was dealing with me as an individual not as an agent when he- sold me the option. ‘ He further testified, without quoting, that he was dlokering with Mr, Peyrefitte for a period pf three months but not on this particular property but on other property belonging to other people. He also teetifies that he had sold property for Marinoni- during 1916 and 1917 as agent. *84 He. goes on to testify that he oould not get anybody to buy those six lots as a whole and''then Marinoni offered to sell them to ;he witness and he wrote up the option on his own typewriter, in his own offioe, in his ovni words and offered some to me and I paid him ten dollars in a oheolc as a part payment for the option in question.” On oross examination: Q, Coming to the date that you had Ur. Marinoni sign this alleged option, had you terminated your agenoy with Mr. Marinoni? A. The oontraot was only for a speoified time end I presumed it was terminated and evidently he considered it so and I considered it so. And going on further to testify in this same connection he substantially says that he was representing Mr. Marinoni, trying to sell this property all the time for him as his real estate agent claiming in this oonnection that he was ft speculator and acted as an individual. He further testified that when he got Mr. Marinoni to sign the option he had no prospective jmrohaser and that at that time he was not diokerlng with Mr. Peyrefitte for the six lots and only on the 7th of Deoember did Mr. Peyrefitte buy the lots in question. Mr. Merinoni was called by plaintiff as on oross ex-mln; tion as under Act 126 of 1908 and substantially testified that he signed an option at the request of plaintiff who at that time and prior to that time was aoting as his agent, not only for the sale of the property in question but had aoted for him in other sales arid that plaintiff told him, Marinoni that he had sold the property) that he had a purchaser, but did not inform Marinoni of the name of the purchaser or the exact amount of the purchase prioe; always considered plaintiff as his agent and thought he was in duty bound to tell him the name of his purchaser and give him the aot purolv.se prioe; *85 always considered plaintiff ae his real estate agent and had the utmost oonfidenoe in Mm, That plaintiff olalaed that under the rules of the Real Estate Exchange whioh allowed him only three per cent commission and that this was a very hard pieoe of- property sell, being unimproved property on Board Street; that he oouíd handle this property but for not less than one hundred dollars commission and suggested that in order to proteot plaintiff,for some reason or other, it would be better to write up some sort <S£ option so that plaintiff, as his agent could be better able to sell the property and witness having the utmost oonfidenoe in plaintiff told him to put the option anyway he wanted and throughout Hr. llarinonl's entire testimony he wwears constantly and repeatedly that plaintiff was his agent and that the option was given to him at his request for the reasons heretofore testified to and that was the only reason it was given to him at all. Hr. G. A. Peyrefitte, the purchaser of the property in question testifies that he was the purohaser of the property in question and he signed the aot of sale before Hr. Henry P. Dart, Jr. líotory Public and that he was not induced to go to Hr. Dart's office to purchase this property, went there of his own free will and accord. Q. Hr. Peyrefitte, will you tell the Court about what time it was when you started dickering with Hr. Harvey for the purohase of this property? A. It was several weJcs before thE I made the deal; I anewered *-n a Vi about some other property whioh I could not get and then got Hr. H rinoni's lots; at first the prioe asked wc.e three thousand dollars and for several weeks I v/as dickering with plaintiff and finally he offered the property to me for Twenty five hundred dollars; I accepted the offer aid I gave hi... my cheok for ten per oent of the amount, $350.00; bh,.t was sometime in December but during the month of October Hr. IP'xvey w-..s always trying to sell ¡¿.rinoni's proferto'to witness; testified *86 further that he never called upon Mr. Harvey but Harvey constantly urged him to buy this property but never would tell him who the owner was although he asked him several times. Q. Did he leave the Impression he owned It? A. ITo sir; I thought he was selling It for someone else. Consequently he bought the property dlreot from Mr. liarinoni for the same prloe. On oross examination: Q. Mr. Peyrefitte, when you first went to dee-l with Mr. Harvey.lt was the latter part of Ootober, 1916, id that a faot? A. Yes sir; it must have been five or six weeks fully before ±ha I gave him the ohsok; he was weakokneed and was holding off all the time for a price. The witness further testifies that he started to deal with plaintiff for two of the lots end when this offer was not aocepted and he could not buy the property that he wanted to buy, he finally bought the property in question. A oareful investigation and olose study of this oase has oonvinoed/JHC^hs.t plaintiff had been the agent of defendants end as such successfully sold several pieces of property gaining the confidence of defendants. Originally when this transaction began and defendants desired to dispose of the property in question they sought plaintiff and put in his hands the sale of the lots mentioned in this record. The prioe fixed was $1900.00, $100.00 of whloh was to be paid to plaintiff as his commission for the 3ale. Plaintiff had oharge as agent for defendants, in this transaction, as he had oharge in former transactions ; had sought purchasers and amongst them was Mr. Peyrefitte who did not wish to buy but one- lot and one half and for that purohase offered Six Hundred Dollars, whioh offer was suomitted to defendants, who rebooted same; subsequent *87 to this plaintiff endeavored time and again to dispose of the property in question as a whole,without success; he had met the present purohaser and endeavored to sell to him but the purohaser at the time refused to buy endeavoring to buy another piaoe of property whioh he considered too high for his use and was finally persuaded to buy the property in question for Twenty Five Hundred Dollars from plaintiff. In the meantime, whilst dealings were going on between plaintiff and Hr. Peyrefibte plaintiff Hugmaisi suggested to defendants thst an option be given him at the same prioe whioh they were willing to aooept from other parties and irrespective of the iafsadKEti* difference In the testimony of plaintiff and defendant on this point, the one that It wus sn option outright, irreapeotive of agency and the other the rever ;e, it ended in the sale of the property for Twenty-Five Hundred Dollars. The purohaser has testified that he is disinterested us between the plaintiff end defendants, Shut he has became the owner of the property, title standing in his name and has paid Tienty Five Hundred Dollars; he swears and there is no contradiction us to his testimony. I','(my’|lopinion It is absolutely true in^tfBopaiwtaBcthat during the time that ha wo3 looking for property in that neighborly od plaintiff w'-s insistent in trying to dispose of this property and during the ii term of his agency was urging purchaser to complete the trensaotion and finally oonvlnced that he had found a purchaser, being the same gentleman who has testified in this os.se he sought and / optained ojition in question, knowing at the time when he got the option that he was going to sell this property, not beoause he had the option, but simply because he saw a ohanoe and opportunity of making Six Hundred Dollars and when the defendants were notified to come to the Hotary1 Office, Hr. Dreifous, to sign the aot of sale, it was the first opportunity they had to know that their agent had mislaid them, virtually deceived them and declined as they *88 has a right in my opinion, to sign, and subsequently sold the property direct to the purchaser. Under these oircumstances I cannot oonoeive how plaintiff oan possibly expect to enrioh himself at defendant's expense. In this opinion I am confirmed by the Judge of the Court aquo who saw and heard the witnesses and therefore had a better opportunity of judging not only from their evidenoe but having them before him and was therefore in a better position to decide this oase that I am. He has tal done so in a very able opinion which is herein made part of this, my opinion in this case. We oopy in full verbatin the Judge's opinion: "This is a suit by plaintiff to xascsac recover from the defendants the sum of six hundred dollars in default of a Judgment for speoiflo performance. It appears that plaintiff had been acting for some time as the real estate agent of defendants, and was engaged in an endeavor to sell the particular property herein described as subject to ±5t his opition. He was particularly authorized to sell this property for the sum of #1900, but there was some hitoh in the negotiations. On November 34 Harvey olalms to have obtained an iadixitaakij: option individually on the property for #10, which he olalms to have paid by oheok. He continued •to act as agent, and finally, after securing the so-called option, he undertakes to sell the property for #3500, to one of the prospective buyers with whom he was negotiating as the agent of defendants. When the defendants discovered that his agent was thus speculating upon him, he declined to acknowledge the validity of the so-called option and himself sold the property to the person who was the same individual with whom plaintiff had been conducting his negotiations. *89 The sale was mads for the sum of $3350, thus figuring the total of $3,500, allowing $250, She fee stipulated to he paid Harvey. There is no evidence that defendant understood that there wa3 a distinct option given Harvey nor any evidence that the $10 was paid except the unsupported evidence of Harvey that he gave the check, and a denial by defendant that he received the money. Agency requires the most careful conduct on the part of the agent. He is not, in good faith, allowed to speculate on a misunderstanding of his principal but is bound to disclose what he has learned in his agency to his principal, and cannot be allowed to privately reap a reward from his knowledge. It appears to me that he is not entitled to a judgment for damages but must account for the money he has received on acoount of the sale. Plaintiff has received $350, when, by special arrangement, he is entitled to withhold $125. He must account for the balance." For the reasons assigned, I respectfully dissent the majority opinion rendered in this case. -Dissenting opinion-»