Brown v. Carpenter , 142 Ky. 676 ( 1911 )

Opinion of the Court by

Judge Carroll

Affirming.

The appellee owned a one-third undivided interest in a house and lot in Louisville, worth between $1,200 'and $1,300. Her brother and her sister owned the remaining interests. . She employed appellant Brown, a real estate agent, to sell or dispose of her interest, which Brown did for $200. Thereafter she brought suit against Brown, setting up in substance that he falsely and fraudulently represented to her that $200 was all her interest was worth and all he could get for it, and the largest and only offer that he had received, when in truth he had been offered as much as $400 but had concealed this offer from her. That relying upon his statements she accepted the $200, and conveyed her interest for this sum to a Mrs. Davis, whom she did not know.

Brown answered, denying all the material averments of the petition, except that he admitted informing appellee that $200 was the only offer he had for her interest.

Upon a trial before a jury, a verdict was returned in favor of appellee for $200.

Appellant did not testify, nor was any witness introduced in his behalf. The testimony for appellee showed that at the time of the sale of her interest, the relations between herself and her sister, with whom she had previously lived in the house owned by them, were not friendly, and for this reason she removed her residence and desired to sell. That she put the sale of her interest in the hands of appellant, who told her that $200 was the best offer he could get, and the only one he had received, and was all the property was worth, and advised her to accept the offer, which she did. Other witnesses were introduced, who testified that her interest was worth $400. Her sister testified that she had offered Brown as much as $300 for the interest, and her sister’s husband said that he had offered Brown $400 in cash for the interest, but that Brown told him that appellant wanted $450. Another witness testified that appellant told appellee that her sister and brother refused to join with her in selling the property as a whole, or to buy her one-third interest in it, and that it would be useless for her to see her sister or other members of her family about buying the property.

Upon this evidence the court instructed the jury to award the appellee such a sum as they believed from the evidence would fairly and reasonably compensate her for the loss, if any, sustained, not" exceeding $200, by reason of the representations of the appellant. The instruction was in fact a peremptory instruction to find for the appellee in some amount not exceeding $200.

Counsel for appellant insists that the jury should have been instructed to return a verdict in favor of his client upon the ground that there was no evidence that the persons who offered more for the property than $200 were financially able to buy it or pay for it, or that the offers they made w,ere in good faith or in writing. In view of the fact that Monogue, the brother-in-law of appellee, testified that he offered Brown .$400 in cash for the interest, and other witnesses testified that it was worth that amount, it does not seem important what property the persons who made the offers owned. Nor is there any contradiction of the fact that the offer of $400 in cash was made in good faith. It was the duty of Brown as the agent of appellee to deal fairly and honestly with her, and to get for the property that she had placed in his hands for sale the best obtainable price. But the evidence shows that in place of doing this he sold the property for $200 less than he had been offered for it. His failure to testify and the fact that appellee was unable to ascertain the whereabouts of the purchaser, do not help the case for the appellant. We think the court correctly instructed the jury and that the assessments of damages was fully warranted by the evidence.

Wherefore, the judgment of the lower court is affirmed.