Van Leeuwen v. Huffaker , 78 Utah 521 ( 1931 )

I concur in the result reversing the judgment and remanding the case for a new trial. I do not concur in what is said and decided in the prevailing opinion respecting the question of the claimed dual capacity of Davis, the assignor of the plaintiff, in acting for and claiming commissions from 15 both the defendant Huffaker and Waite, the principals in the exchange of the properties. The contract entered into respecting the relation of principal and agent between Huffaker and Davis is set forth in the prevailing opinion. Concerning it, it is said that not anything is contained in the contract and that there is not anything in the conduct of the parties, from which it may be inferred that Huffaker placed any reliance upon Davis to negotiate a sale or trade. I do not concur in that. Of course, there is no express language of such reliance, but it necessarily is implied from the contract creating the agency and employing and authorizing Davis to sell or trade or effect a sale or trade of the property, in the performance of which he was required to act for the best interest of Huffaker and to effect the best sale or trade for him that could be had, and not to divide his allegiance and fidelity between both the seller and the purchaser. In pursuance of the contract, Davis assumed to do and did more than merely bringing Huffaker and Waite together. That is evident from the testimony of Davis himself of his continued efforts to bring the parties not only together but to an agreement, his examining and inspecting the properties to be exchanged first with one of the contracting parties and then with the other, participating in the discussions and negotiations between the parties concerning the trade, preparing a contract for the exchange or trade of the properties which was signed by himself and by Waite and by him presented to Huffaker for his signature. Davis being employed by both seller and purchaser, he owed a duty to the former to sell the property or obtain a purchaser at the highest and best price, while to the latter to buy it at the lowest, which rendered his duties in the premises inconsistent. That also is true in effecting and bringing about an exchange of the properties and in participating in negotiations concerning an agreement with respect thereto. The case thus on its facts is as I think not within the case of McLure v. Luke, cited in the prevailing opinion.

With respect to what is said in the prevailing opinion expressing views of the majority members of the court as to the basis on which a commission, if any is to be computed, I concur, and add these observations: As is seen by the contract between Huffaker and Davis, the former agreed to pay 16-19 the latter "5 per cent of the sale price" of the real estate and not "of the appraised valuation" of $15,000 as alleged in the complaint. The contract having been attached to and made a part of the complaint, the allegations of the latter may not enlarge the plain terms of the former but must yield thereto. The plaintiff, however, grounded his cause as though he was entitled to 5 per cent. of $15,000, the alleged appraised value, and in his brief urges he is entitled to $750, 5 per cent. of $15,000, or nothing. He tried his case and induced findings and a judgment for $750 and interest on such theory. The action being grounded on the contract as it was required to be, the theory thus on which the amount of commissions was alleged and claimed, upon which the finding as to the amount of the commission was based and on which the judgment rests, was without and not within the plain terms of the contract. Complaint is made of such finding and of the judgment. Because the complaint filed in the action was not assailed by demurrer does not preclude the defendant from complaining of the finding and of the judgment in such particular. He still had the right to urge that whatever compensation be awarded against him for commissions that it be based on the terms and conditions of the contract and not otherwise. The trial court basing its finding and judgment, not on 5 per cent. of the sale price, or on the value of the property Huffaker received in exchange for his property, but on the alleged appraised value of $15,000 regardless of the value of the property received by Huffaker, manifestly was prejudicial to the rights of Huffaker and gave the plaintiff an advantage to which he clearly was not entitled. Though a sufficient assignment was made to justify a review of the finding and judgment in such respect, and though in presenting and discussing the rulings involved, the appellant's counsel may not have given the best or good reasons for the erroneous rulings and in doing so may even have urged untenable claims, yet enough was discussed and said concerning the assignment to show that it was not waived or abandoned. Courts may and frequently do consider a ruling properly assigned as error and sustain the assignment, if on the record it ought to be sustained, though the argument in support thereof may be faulty or even spurious, especially if the defect or error involved and inherent in the assignment is glaring and harmful against him complaining of the ruling, as here it was, and where the ruling is, as here it was, discussed and defended by the party in whose favor it was made though the discussion with respect thereto may be brief.