Dice v. Wallace ( 1914 )

Mr. Justice Scholfield

delivered the opinion of the court.

This is a writ of error to the Circuit Court of Vermilion county to review a decree rendered in a suit between the defendants in error and the plaintiffs in error for an accounting. The case was heard upon the amended bill, answers, replications, master’s report and exceptions thereto. Both parties filed objections and exceptions to said report and have filed errors and cross-errors in this court. Upon a hearing a decree was rendered against the plaintiffs in error on the accounting and they were ordered to pay the defendant in error Kittie B. Dice the sum of $2,683.48. The decree also allowed the plaintiffs in error a commission of $271.17, and did not allow the defendant in error, Kittie B. Dice any interest.

The evidence shows that on December 20, 1902, the defendant in error Kittie B. Dice conveyed by deed to the plaintiff in error Dale Wallace real estate described as follows: All of Dice’s first addition to Hoopeston that remained unsold, together with lots, one, two, three and four of Dice’s subdivision of part of section 14, township 23 north, rang*e 12 west, which lies just west of and adjoining Dice’s first addition to Hoopeston, to sell for and account to her for the proceeds after paying certain debts.

Plaintiffs in error were agents for Mrs. Dice. They had her property under their control and occupied a fiduciary relation with her and were bound to disclose to her everything to .her advantage. They properly accounted to her, so far as disclosed for all the property sold except the last tract of five acres (block 2).

This, on a final settlement of their affairs, they bought of her without a complete disclosure of conditions for $2,200, and immediately sold it for $5,000. to a purchaser with whom they were negotiating at the time for its sale at $5,000. The decree is right in requiring them to account to her for the $5,000, but cross-errors by defendants in error are well assigned. Under the above facts no commission should be allowed to plaintiffs in error, and they should be charged with interest at five per cent, on $2,954.65 from October 20, 1904, the day the lot was sold by plaintiffs in error for $5,000.

The defense of laches cannot prevail under the pleading and evidence in this case. The decree will be reversed and remanded at the costs of plaintiffs in error with directions to enter a decree in conformity with this opinion.

Reversed and remanded with directions.