Donaldson v. Rosan , 5 Pelt. 285 ( 1922 )

Dinkelsplel; J.

Plaintiff Institutes this suit averring that defendant was indebted to him in the sum of $180.00, beoause of the faot that he was employed by her attorney, Ur. B. J. Daly, to sell her property on Gentllly Road, agreeing to pay him the sum of two per oent of the amount of the sale, and further plaintiff prays in the alternative, that in the event the Court should hold that Daly was not authorized to enter into an agreement with plaintiff, then in that oase, avers that sinos July 1918, he had been endeavoring to effeot the sale of the property for aooount of defendant, had made an appraisement thereof, with her authority, had lnspeoted the premises, in her presence, and at her request and made a detailed valuation of the buildings, ground, barns, peoan trees on said property, with the knowledge and oonsent and under the employment of the defendant, and wherefore he pray* for Judgment.

There were several exceptions filed in this oase prior to the answer? 1st, that plaintiff's claim consisted of two inconsistent demands, which exception being overruled there were exoeptions subsequently filed, one of vagueness and one of no oause of action, whloh were also overruled; and then answer defendant denies that she is indebted to plaintiff in any amount, denies Daly, who was. her attorney, was authorized to oontraot or employ plaintiff to sell her property, denies that she agreed to pay plaintiff two per oent of the amount of sale, denies speoifioally that she ever authorized Daly to make a oontraot for her and that if said Daly did make a oontraot for her, he exoeeded his authority and made the oontraot without her knowledge or oonsent, denies that plaintiff sold her said property for the sum of #9000,00 or any other sum, denies speoifioally that sthere were any services rendered by plaintiff for her aooount and prays for Judgment in her favor.

There were a number of witnesses examined for bo$h asserting of these parties; plaintiff/ his oíala, and without entering Into any particular part of his testimony, gives an aooount of the Interview with defendant, where Mr. Daly was present and where he was authorized to make and did make an Inventory and description of the property of the defendant, with orders to present to the .Sook Board, for the purpose of securing sale of the property in question.

Aooording to his testimony he went several times to examine the building, to put a valuation on same, together with the ground and the crop; he fixed the prioe and ■ submitted the offer to Mr. Tessler, who at that time, had oharge of the property in question.

All of this more or less is denied by the defendant, who positively swears that she had no dealings with plaintiff of any kind or oharaoter, that she never saw him, she did not get his reports, that he made no endeavors to sell her property and that he had no authority whatever to do so.

The testimony of Mr. Daly, the attorney in tht? ease, is in our opinion, the moat important factor in referenoe to the employment of plaintiff and the knowledge that defendant had about same; and, amongst other portions of this witnesses testimony he goes on to relate his employment with defendant, that a oertaln a-aount had been offered for the property which was not satisfactory and he brought down to the plaoe, expert photographers to view the property; that plaintiff at that time was representing several parties and that he engaged him and went with him to defendant’s plaoe and that plaintiff mad® an inspection, returned his estimates in writing and that estimate was then in possession of the defendant; he positively swears that plaintiff and he visited the house together, that he introduced plaintiff to the defendant and told her what they were there for, that measurements of the plaoe, inspection of several buildings, describing them, and that he explained to the defendant the objeot of the visit, that he was introducing plaintiff as an expert for hex benefit. At page twenty five of his testimony he reiterates that defendant was fully aware of what plaintiff was doing, adding, "make no mistake about that".

Q. That is your opinion*

A. Sot my opinion, it is a fact.

It is evident from the oonflioting testimony of witnesses in this oase, for plaintiff and defendant, the one asserting emloyment and the value of servloes rendered and the other denying in toto that she ever net plaintiff, ever knew him, that he had ever visited her plaoe, ever had any oontraot with her for the sale of this property, is in our opinion, oontradloted, by Ur. Daly, her attorney, who was energetically progressing in an Attempt to sell thi# property at the very best prloe possible, and failing to get the prloe demanded, he with the oonsent and knowledge of defendant, employed plaintiff to make reports as an expert, of this property, whloh were satiefaotory; although denied by defendant a oopy of the report so made by phalntiff was in her possession and that she did know of Hr. Daly's employment of plaintiff and knew further that plaintiff was aoting for her in endeavoring to get a much larger prloo for the property in question. The original offer of the Dook Board, through Hr. Tassier, was #7500.00} this was subsequently inoreased to #9000*00, for wbioh the property was sold.

Under the olroumstanoes as stated and the evidenoe as given, the Judge of the Court aqua, who had all the witnesses before him, and who, having seen and heard these witnesses, had a better opportunity to Judge of the value of the teetimony adduoed, than we have, and after hearing these parties, he deolded that plaintiff was entitled to the amount olaimed or the sum of Í180.00 for sefvloes rendered.

It has been frequently held that under oiroum-stanoes euoh as appears in this reoord, that this Court will not disturb the judgment of the Court aqua, unless manifestly erroneous, on questions of faot.

Frank vs. Mateu, 13 Court of Appeal, 473.

For the reasons assigned, it is ordered, adjudged and deoreed that the judgment of the Court aqua be and the same is hereby affirmed, with oosts of both Courts to be paid by tkad the defendant.

-Judgment affirmed*