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Statement by Benson, J.:
The further facts will be found in This is an action for money had the opinion. and received by the defendant for
Mr. A. G. Thompson for appellant. the use of the plaintiff. The com
Messrs. George W. Gearhart and H. plaint is in the usual form, and the
H. Northup for respondent. answer is a general denial. Upon stipulation the case was tried by the
Benson, J., delivered the opinion
of the court: court without a jury. The evidence
Our attention is first called to the discloses the following facts: The
fact that the court admitted in eviplaintiff, a widow, was the owner of certain business property on Wash- dence, over defendant's objection, a
written instrument which reads ington street in Portland, upon which there was a mortgage for
thus : $13,000. The property property was as
For services rendered in the sale sessed at $31,200. Being in finan- of my property located between 16th cial straits, she was trying to sell and 17th street on Washington this property, and the defendant, street and more fully described as learning this fact, informed J. R. Number 531 on Alder street and 528, Ellison of the fact, and the latter 5281, and 530 on Washington street authorized defendant to offer plain- in the city of Portland, state of Oretiff $10,000 in cash, and his resi
gon, I hereby agree to pay to 0. V. dence property at the corner of 37th
Badley, the agent who sold said and Morrison streets in Portland, property to one J. R. Ellison, the
, which was valued at $5,000. Plain
sum of tiff insists that this offer was never
seven hundred and fifty disclosed to her, but that defendant ($750) dollars, and I hereby order told her that Ellison was willing to
and direct Geo. W. Gearhart, the atpay her $4,000 in cash and convey
torney for J. R. Ellison, to pay to to her the residence property men
O. V. Badley said sum of $750 when
final settlement is made and Mr. tioned, and certain other lots, which in fact belonged to defendant. The
Ellison's part of the agreement for latter offer was finally accepted by
the exchange of the properties is her, and when she conveyed her fulfilled, said contract being a part
of this memorandum. property to Ellison, she received the $4,000, in cash, less a commission of
Cora E. Puffer. $750, which she paid to defendant,
Received payment 8-25–1917. and some incidental expenses, and
0. V. Badley. also received deeds to the proper
This document was introduced ties already referred to. In one of by the plaintiff as evidence of the the houses conveyed to her by de- fiduciary relation existing between fendant, there was some furniture plaintiff and defendant in the transwhich was included in the convey- actions involved herein. Defendant ance. Thereafter, discovering that argues that it is inadmissible for defendant had received $6,000 of the reason that it does not satisfy the original cash offer, in payment the requirements of § 808, L. 0. L., for the lots which he had deeded to as amended by Laws 1917, p. 786, her, and that he had not disclosed which is the Statute of Frauds. The to her the offer as made by Ellison, portions of this statute which are to plaintiff tendered him a deed to be considered in this connection are such property and made a demand as follows: "In the following cases for the $6,000, which was refused, the agreement is void unless the and she brought this action. At same or some note or memorandum the conclusion of the trial, the court thereof, expressing the consideramade findings of fact, and entered tion, be in writing and subscribed a judgment in favor of plaintiff, by the party to be charged, or by from which defendant appeals. his lawfully authorized agent; evi
181 Pac. 1.) dence, therefore, of the agreement tended to establish plaintiff's conshall not be received other than the tention that the rewriting, or secondary evidence of lation of principal Evidence its contents, in the cases prescribed and agent existed employing
broker-existing by law:
between herself and An agreement entered into subsequent to the taking defendant in the effect of this act, authorizing or transactions which are the subjectemploying an agent or broker to sell matter of the controversy. or purchase real estate for a com- It was defendant's contention pensation or commission; provided, that he was at no time acting as the however, that if the note or memo- agent for plaintiff, but that throughrandum of such agreement be in out the entire negotiations he was writing and subscribed by the party representing Ellison only. In supto be charged, or by his lawfully port of this theory he offered in eviauthorized agent, and contains a de- dence the deposition of R. W. Zimscription of the property sufficient merman, who at the time of taking for identification, and authorizes or the deposition, and at the time of employs the agent or broker named trial, was with the American Expetherein to sell such property, and ditionary Force in France. By this expresses with reasonable certainty evidence it was sought to establish the amount of the commission or that Zimmerman was a real estate compensation to be paid such agent broker, acting independently of deor broker, such agreement of au- fendant, with whom plaintiff had thorization or employment shall not listed" her property for sale; that be void for failure to state a con
he, as her agent, had conducted the sideration."
negotiations with defendant as the It is clear that the writing in agent of Ellison; had communicatquestion satisfies every requirement ed to her, by telephone, the full deof the statute, including the signa- tails of Ellison's original offer,
which had been rejected by her; ture of the defendant, but it is
that before the bargaining was urged that the instrument discloses
finally concluded, he was called into upon its face the fact that it was
the public service, and left the conexecuted after the sale was made,
clusion of affairs entirely in the and was not signed by the defend
hands of Badley, the defendant. ant until after the payment of the
This evidence was not excluded commission therein specified. We by the court, but was admitted are of the opinion, however, that a
"subject to the objection,” the court written memorandum of the agree- evidently treating the case, so far as
ment executed aft- procedure is concerned, as if it Broker
er the performance employment
were a suit in equity. However, agreement- of the services sat- the court at the same time anwriting
isfies the demands nounced that in weighing the eviexecated after serviees
of the statute just dence he should not consider the rendered.
as effectively as if evidence tending to prove agency in it were written and signed prior Zimmerman, for the reason that, if thereto, and in this view we are there were any such agency, its supported by the cases of Re Bal- proof rested in parol, and was infour & Garrette, 14 Cal. App. 261, competent, as violating the Statute 111 Pac. 615; Carrington v. Smith- of Frauds as prescribed in 808, L. ers, 26 Cal. App. 460, 147 Pac. 225; O. L. Muir v. Kane, 55 Wash. 131, 26 It may be although it is not L.R.A.(N.S.) 519, 104 Pac. 153, 19 necessary for us to decide—that Ann. Cas. 1180; Ide v. Stanton, 15 such parol evidence is admissible Vt. 685, 40 Am. Dec. 698. The writ- collaterally, to show the relationing in question was properly ad- ship of the parties, where the enmitted in evidence, and very clearly forcement of the specific contract is
conclusiveness of finding.
Evidence value of
not an issue, but, having all of the testimony is flatly contradicted by
evidence before us, her, and the conflict is conclusively Appeal
and giving it all of disposed of by the finding of the
the effect to which trial court. it is entitled, the finding of the trial The contention of defendant in court that the defendant was the reference to constructive knowledge agent of plaintiff is fully justified.
is based upon the theory that George Plaintiff introduced, over the ob
W. Gearhart was acting as legal adjection of defendant, the testimony viser for plaintiff in the transaction, of B. D. Sigler as to the market
and that he had full knowledge of value of the properties which were
the facts. The record discloses that conveyed by defendant to plaintiff, Gearhart was representing Ellison and this ruling is assigned as error.
in the matter, while Mrs. Puffer was Plaintiff concedes that under the pleadings this evidence is not strict relying upon the services and adly relevant to the issues, but urges
vice of Judge H. H. Northup. Judge that it was relevant and competent competent Northup at this time became il,
, for the purpose of
and asked Mr. Gearhart to act for showing that plain- him in passing upon the sufficiency property. tiff did not act ca
of the title to the several properties, priciously in repudiating the trans- as disclosed by the several abstracts. action of which she complains, but This he did, and Mrs. Puffer accepthad a real grievance. For this pur- ed his assurance as to the title in pose it was admissible; but, even if
the tracts of land. It is conceded it were otherwise, we are unable to
by all that in every other detail Mr. discover wherein the defendant suf
Gearhart was the fered any injury therefrom, since attorney for Elli- knowledge the final determination of the cause
son. Therefore any imputed to is based upon the fact that the re
knowledge which tion from lation of principal and agent existed
Gearhart may have opposite parties. between the parties, and that de
had as to the Ellison offer, and the fendant, while actAppeal
source of the real estate which was nonprejudicial
agent for plaintiff, failed to
actually conveyed, cannot be imdisclose to her the
puted to the plaintiff, for “the rule true offer made by Ellison for her
that notice to an agent is notice to property. In Williams v. Burdick,
his principal is not applicable unless 63 Or. 41, 125 Pac. 844, we find this
the notice has reference to business language: “In an action tried by a in which the agent is engaged under court without a jury, the receipt of authority from the principal, and is incompetent evidence, properly ex- pertinent to matters coming within cepted to, is not prejudicial, unless that authority; and hence a princi
, injury has necessarily resulted.”
pal is not affected with knowledge It is also urged that plaintiff must which the agent acquires while not fail by reason of the fact that she
acting in the course of his employhad both actual and constructive ment, or which relates to matters knowledge of Ellison's offer, and of not within the scope of his authorthe fact that some of the properties ity, unless the agent actually combelonged to defendant before the
municates his information to the deal was finally consummated. Re
principal.” 2 C. J. 863. garding actual knowledge, the defendant introduced evidence to the
It is further urged that when effect that Zimmerman, in a tele- plaintiff tendered to defendant a phone conversation,
deed to the properties conveyed to -finding on conflicting
informed Mrs. Puf- her by him, and demanded payment fer
of Ellison's of the money he had received thereoffer, and that she rejected it. This for from Ellison, she made no men
(- Or. -, 181 Pac. 1.) tion of the furniture which was in McBride, Ch. J., and Burnett and the Firland house. In regard to Harris, JJ., concur. this it may be said that there is evidence to the effect
that when she made rescission necessity of her demand for a
The reported case (PUFFER V. BAD
LEY, ante, 1561) is another illustration rescission, the defendant promptly announced that
of the rule applied in FLORENCE V. DE
BEAUMONT (reported herewith) infra, the transaction was a closed inci
that the knowledge of an attordent, and that he would not rescind.
ney will not be imputed to his client Under such circumstances, further in certain cases of limited employdetails would have been futile, and ment. The rule in case of limited emnot required.
ployment is discussed in subd. III. c, of We find no reversible error in the the note, p. 1592, post, upon the genrecord, and the judgment is af- eral question of imputing the knowlfirmed.
edge of an attorney to his client.
CHARLES S. FLORENCE, Trustee, etc., of H. C. De Beaumont, Bankrupt,
Washington Supreme Court (Dept. No. 1) - April 24, 1918.
(101 Wash. 356, 172 Pac. 340.) Attorney - knowledge - notice to client.
1. The knowledge by an attorney of the fraudulent character of a transfer of property by an insolvent is not imputed to one lending money on a mortgage of the property to the transferee, merely because, when the attorney who represented the parties to the fraud approached the money lender with the mortgage for execution, the latter consulted him as to the value of the property offered as security for the loan.
[See note on this question beginning on page 1592.] Fraudulent conveyance mortgage bind his principal by his knowledge to secure advance to make crop.
than by his acts in matters outside the 2. A mortgage by a fraudulent transferee of an insolvent to secure an ad
scope of his authority or employment. vance to put in a crop, which is repaid
[See 2 R. C. L. 962; 21 R. C. L. 841.) from the crop, is not fraudulent as to - knowledge of attorney - interest in creditors of the fraudulent trans
concealment. ferrer. [See 12 R. C. L. 640 et seq.]
5. One of two parties to a loan transEvidence burden of proof
action, who are represented by the
fraud. 3. The burden of proving fraud is
same attorney, is not chargeable with
notice of the facts known to the atupon him who asserts it. See 10 R. C. L. 898.]
torney through his relation to the other Notice — to agents - binding on prin.
party, which it is to the interest of the cipal.
latter to conceal from him. 4. An agent or attorney can no more [See 2 R. C. L. 965.]
APPEAL by plaintiff from a judgment of the Superior Court for Asotin County (Miller, J.) dismissing as to one of the defendants an action brought to set aside an alleged fraudulent conveyance. Affirmed.
The facts are stated in the opinion of the court.
Messrs. Fred E. Butler and E. J. from Denny the value of a crop of Doyle, for appellant:
grain, at the time of the transacA state of facts more fraudulent and tions in question growing upon the marked with as many badges of fraud
land conveyed by De Beaumont and as this case could hardly be imagined.
wife to Denny. It was orally stipu20 Cyc. 445, et seq.; Ogden State
lated in this court that F. G. MorriBank v. Barker, 12 Utah, 27, 40 Pac. 769; Morse v. Ryland, 58 Kan. 250, 48
son, after plaintiff took this appeal, Pac. 957; Hadley v. Adsit, 3 Kan. App. has died, and that Ellen T. Morri122, 42 Pac. 836.
son, the duly appointed executrix of The combining of all the defendants his estate, be substituted as respondtogether to commit a fraud under the ent in this appeal. Bankruptcy Laws of the United States
We find it unnecessary to notice constituted a conspiracy, and the acts
the pleadings further than to say and declarations of one was and is the proper evidence against the others.
that they sufficiently present the is8 Cyc. 679; Blain v. State, 33 Tex. sue of good faith in these transCrim. Rep. 236, 26 S. W. 63; People v.
actions. The cause was tried to the Daniels, 105 Cal. 262, 38 Pac. 720; court without a jury. The court Hawkins v. Alston, 39 N. C. (4 Ired. found in substance that upon and Eq.) 137.
prior to May 12, 1914, De Beaumont Morrison is liable for the acts of and wife were the owners as their his agent.
community property of 320 acres Alaska S. S. Co. v. Pacific Coast Gyp- of land in Asotin county, Washingsum Co. 78 Wash. 247, 138 Pac. 875; Eaton, Eq. Jur. p. 132; Hart v. Sandy,
ton, subject to a mortgage for 39 W. Va. 644, 20 S. E. 665.
$9,000 to the Holland Bank; that There is no distinction between an
they also owned certain farm maattorney at law and other agent, and chinery, hogs, cattle, sheep, and the principal is bound by the knowledge eight work mules and harness; that possessed by both the attorney or other the mules were subject to a mortagent.
gage of $500 to the Holland Bank; Bierce v. Red Bluff Hotel Co. 31 Cal.
that there was growing upon the 161; Wittenbrock v. Parker, 102 Cal. 93, 24 L.R.A. 197, 41 Am. St. Rep. 172,
premises during the seasons of 36 Pac. 374; Rogers v. Palmer, 102 U.
1914–15 a crop of grain; that the S. 263, 26 L. ed. 164; Brown v. Jef
land and personal property constiferson County Nat. Bank, 19 Blatchf.
tuted all of the property owned by 315, 9 Fed. 258; Merchants' Nat. Bank the De Beaumonts at that time from v. Lovitt, 114 Mo. 519, 35 Am. St. Rep. which claims of creditors could be 770, 21 S. W. 825; Wright v. Muxlow, 8 satisfied; that at that time and prior Ben. 52, Fed. Cas. No. 17,629; Allen thereto De Beaumont was insolvent, v. McCalla, 25 Iowa, 464, 96 Am. Dec.
owing debts in the sum of $15,000; 56; Smith v. Ayer, 101 U. S. 320, 25 L. ed. 955.
that on May 12, 1914, De Beaumont Mr. C. H. Baldwin for respondents. conveyed the real estate mentioned
to Denny, and on the same day Ellis, Ch. J., delivered the opinion transferred and delivered to Denny of the court:
all of the above-mentioned personal Plaintiff, trustee of the estate of property and crops on the land; that H. C. De Beaumont, a bankrupt, the deed and bill of sale were filed brought this action against De Beau- for record on May 13, 1914, at the mont and wife, T. U. Denny and request of C. H. Baldwin, attorney wife, and F. G. Morrison, to set for De Beaumont and Denny; that aside as in fraud of creditors a deed the deed and bill of sale were withand bill of sale made by De Beau- out consideration, and were made mont and wife to Denny and a chat- for the purpose of hindering, delaytel mortgage made by Denny and ing, and defrauding De Beaumont's wife to Morrison, and to recover the creditors; that at the time of this personal property transferred and transaction De Beaumont's attormortgaged by these instruments, or ney, Baldwin, was preparing for its value, and further to recover, him a petition in bankruptcy, and