Citation Numbers： 32 Idaho 330, 183 P. 986
Judges： Budge, Morgan, Rice
Filed Date： 7/1/1919
Status： Precedential
Modified Date： 1/2/2022
The respondents, wife and husband, alleged in their complaint that they exchanged certain real estate in the city of Lewiston for certain farm lands in Idaho county, belonging to appellants George W. Wilkin and Lila J. Wilkin, his wife. It was alleged that certain representations were made by the appellants, and A. H. Diddock, a real estate broker, who was joined as defendant, concerning the Idaho county land, by which respondents' were induced to and did make the exchange of property, and that such representations were known by appellants, and defendant Diddock, to be false and fraudulent. This action was for damages resulting from the fraudulent representations. The trial resulted in a verdict in favor of respondent Emma Ringer and against the appellants George W. Wilkin and Lila J. Wilkin. The jury found against C. 0. Ringer, the husband of Emma Ringer, and in favor of Diddock. Judgment was entered accordingly. From the judgment, George W. Wilkin and Lila J. Wilkin have appealed.
When the appellants Wilkin first made their appearance in the action, they moved for a change of venue to Idaho county, the place of their residence. The motion was denied, and the denial is here assigned as error.
The action of the court in this regard is not subject to review. No appeal was taken from the order of the court within sixty days from the time the order; was made and entered on the minutes of the court as required by C. L., see. 4807.
In the deed of conveyance executed by áppellants for the Idaho county land, there was a misdescription in that the property was described as being located in section 1 of a certain township, instead of section 21. It had been admitted by respondents in the pleadings that the misdescription had been made by mistake. Respondents were permitted to prove the condition of the property described in the original deed, and, over objection of appellants, to state the location of the land. This was error, since under the pleadings the alleged
Respondent Mrs. Ringer became the owner of the Lewiston property, about eighteen months before the transaction here in controversy occurred, by means of a trade or exchange of properties with one Dr. Alley. Over objection of appellants, she was permitted to testify as to- the valuation placed upon the Lewiston property in the previous trade with Alley. Witness Alley was also permitted, over objection, to testify as to the valuation of this property in his trade with Mrs. Ringer.
The reception of this testimony was error. ’ Not only was the time of the exchange too remote for testimony with respect to the transaction to be relevant, but the evidence was not competent. The price paid for property is incompetent as evidence of its market value. (Mattern v. Alderson et al., 18 Cal. App. 590, 123 Pac. 972; Wichita Falls etc. Ry. Co. v. Wyrick (Tex. Civ.), 147 S. W. 730; Texarkana etc. R. Co. v. Neches Iron Works, 57 Tex. Civ. 249, 122 S. W. 64; Galliers v. Chicago, B. & Q. R. Co., 116 Iowa, 319, 89 N. W. 1109.)
On direct examination of witness Booth, called on behalf of respondents, he was permitted to state that he had made an estimate of the cost of construction of the dwelling-house upon the Lewiston property. Over objection of appellants, the witness was permitted to answer the following question:
“Q. I will ask you, Mr. Booth, if you know the value of that house on the 20th day of April, 1915? ....
“A. The figures that I have made $3,900'.”
After argument by counsel, the record contains the following:
“The Court: Gentlemen, the court has ruled on this, and there is no use to go into what your figures show. Tell the ¿value of that house, Mr. Booth, on the 20th day of April, 1915.
“A. The cost of that house would be $3,900, and contractor’s profit $395, making a total of $4,485.”
This witness, in the course of his examination, was also permitted to answer the following question, over objection of appellants, that it was incompetent and immaterial:
“A. About $350.”
And again the witness was permitted, over objection, to answer the following questions:
“Q. What, in your judgment, would you say that cellar was worth on the 20th day of April, 1915? . . . .
“A. I have the foundation and basement together at $1,500.
“The Court: I do not care what they cost, but what was it worth ? /
“A. That is the only way I can tell what a thing is worth. Figure up so many yards of excavation, so many perch of rock, etc.
“Mr. Ailshie: I move to strike all that on the ground that it doesn’t establish value.
“The Court: Mr. Booth, do you know the value of that house and lot on the 20th day of April, 1915 ?
“A. You mean the selling value?
“The Court: Yes.
“A. No, sir..
“Q. I will ask.you, Mr. Booth, if building material is more expensive now and whether or not it would cost more to build that house now than it would have on the 20th day of April, 1915.
“Mr. Ailshie: Objected to as incompetent and an attempt to show value by comparisons, which is not admissible, and on the further ground tha.t the witness says he doesn’t know the market value of the property on the 20th day of April, 1915.
“The Court: Answer the question.”
The action of the court in permitting the witness to answer these questions was error. The issue, for the proof of which the testimony was offered, was the market value of the property conveyed to appellants by respondents on the. twentieth day of April, 1915. This property consisted of certain lots upon which the buildings and cellar were located. Manifestly
Upon cross-examination, after this witness had stated that he did not know anything about market values, and that the only way he arrived at values was by figuring as he would in adjusting fire insurance losses, appellants moved to strike the evidence of the witness as to the value of the property on the ground that it was not directed to the market value. The motion was denied. This motion should have been granted, and refusal to grant it was error.
Among the instructions to the jury is found the following:
“You are instructed, gentlemen of the jury, that if the defendants George W. Wilkin and Lila J. Wilkin, his wife, employed and authorized the defendant A. H. Diddock, to exchange their property, and in pursuance of that authority A. H. Diddock induced the plaintiffs to,exchange the property of plaintiffs for the property of defendants George W. Wilkin and Lila J. Wilkin, and said A. H. Diddock made false and fraudulent representations about the property of the said defendants George W. Wilkin and Lila J. Wilkin, his wife, upon which plaintiffs relied and which induced them to exchange their property for the property of the said defendants, Wilkin and wife, then the defendants, George W. Wilkin and Tiila J. Wilkin, would be responsible for that fraud, notwithstanding there were no instructions given to said defendant A. H. Diddock by the defendants George W. Wilkin and Lila J. Wilkin, his wife, which authorized him to make fraudulent representations, and notwithstanding the defendants George
This instruction was error. The rule adopted by this court in relation to the liability of an owner of property for fraudulent representations made by a broker, in effecting a sale or exchange thereof, will be found in the recent case of Dellwo v. Petersen, ante, p. 172, 180 Pac. 167.
The court refused to give the following instruction requested by appellants:
“I instruct you that where the same party acts as agent for each of two principals with their knowledge and consent that both are bound by his acts "and neither can recover from the other for any statements or representations made by him to the other, and that where, an agent is acting for each of two principals neither principal is liable to the other for his acts. And I instruct you that if you find from the evidence in this case, by a preponderance of the evidence, that the defendant Diddock was acting as agent for the defendant George W. Wilkin, and was at the same time acting as agent for the plaintiff Emma Ringer in respect to the transactions alleged in the complaint, and that she had knowledge that he was so acting for the defendant Wilkin, then the defendant Wilkin would not be liable for any acts or representations of the defendant Diddock.”
Respondents denied that defendant Diddock was their agent, but, in view of the fact that there was evidence produced at the trial tending to prove that he was the agent of respondents and appellants, with their knowledge and consent, and that there was a failure of proof to show fraudulent collusion between Diddock and appellants, this instruction was pertinent and should have been given.
Where an agent is acting for»two parties with adverse interests with respect to the same transaction, with knowledge and consent of both, each is charged with notice of that of which the agent becomes cognizant during the progress of the
At the close of the trial the appellants Wilkin moved for a directed verdict on the ground that there had been no substantial evidence introduced showing or tending to show that any false or fraudulent representations or misrepresentations had been knowingly made by or on the part of appellants, and that there was no evidence of 'any nature which would tend to prove that appellants caused respondents to forego the ordinary methods of investigation to learn the condition of the property, or persuade them from making the necessary inspection and examination.
The motion should have been granted as to appellant Lila J. Wilkin on the first ground suggested. The record is entirely silent as to any representations made by her in regard to the transaction. However, we think the court did not err in refusing to grant the motion as to appellant George W. Wilkin.
The last specification' in the brief of appellants, to the effect that the evidence is insufficient to support the verdict, raises the same question as is presented by the motion for a directed verdict.
In the ease of Dellwo v. Petersen, supra, it was held that in order to hold the principal for the fraudulent representations made by a real estate broker, it is necessary to be able to trace some connection between the principal and the agent with regard thereto, and thereby charge the former with responsibility for what the agent may have said or done. In this case, there is evidence to the effect that Wilkir, gave the
In that state of the evidence, we do not think the appellant George W. Wilkin was entitled to a directed verdict, for by furnishing the description to the broker it may at least be inferred that he authorized the broker to furnish the same to respondents, and in such a manner that respondents might rely thereon, so that the question of his responsibility was one for the jury.
The judgment is reversed, with instructions to dismiss the action as to Lila J. Wilkin. Costs awarded to appellants.