Miller v. Wood

This appeal involves two actions for the rescission of the purchase of real property and for damages. Plaintiffs Joseph and Berenice Tampico and Melville S. and Sarah B. Miller commenced separate actions against Ernest J. and Thelma A. Wood, vendors, and Howard J. Beck, broker, on August 12, 1958. Thereafter, both causes of action were consolidated for trial. Judgments were rendered for the defendants Wood on all counts, and against defendant Beck on the count for damages. Plaintiffs bring a consolidated appeal, on the judgment roll, from the trial court judgments.

“ Where the appellant has designated only the papers and records constituting the judgment roll and has not given notice to prepare a reporter’s transcript, the judgment roll shall constitute the record on appeal. ...” (Rule 5(f), Rules on Appeal.) Also, it must be presumed that the trial court received sufficient evidence to support its findings. (White v. Jones, 136 Cal.App.2d 567 , 571 [ 288 P.2d 913 ].)

The findings relative to this appeal are as follows: In March of 1958 the Woods purchased two contiguous pieces of property in Pasadena, California. Soon thereafter they employed defendant Beck. Because the nature of this employment relationship is determinative, it is advisable to set forth the finding of fact which bears upon it. The findings in both Clerk's transcripts are identical: ‘‘On and after the 19th day of May, 1958 and theretofore, but subsequent to March 14, 1958, Defendant Howard J. Beck, a licensed California Real Estate Broker, was employed by Defendants Ernest J. Wood and Thelma A. Wood, and was authorized by Defendants Ernest

Respondents argue that Beck was employed by the Tampicos and Millers as their agent and therefore his representations are chargeable to them. Assuming such an agency, the conclusion based thereon is not warranted by the decisions in this state. We have concluded that Beck was also the agent of the Woods, and “generally, the fact that the broker or agent in a real estate transaction is the agent for both parties is no defense to an action by one of the parties to hold the other party responsible for misrepresentations with regard to such other party’s property made to him by the broker or agent.” (Anno., 58 A.L.R.2d 49 .) This is the rule in this state. (See Herdan v. Hanson, 182 Cal. 538 [ 189 P. 440 ] ; 58 A.L.R.2d 49 , 50; Owens v. Schneider, 29 Cal.App.2d 593 [ 85 P.2d 198 ].) “Where an agent common to two parties betrays one in favor of the other the second, of course, cannot charge the first with the agent’s knowledge.” (Bowen v. Mount Vernon Sav. Bank, 105 F.2d 796 , 799 [ 70 App.D.C. 273 ], citing Herdan v. Hanson, supra.)

Wright v. Lowe, 140 Cal.App.2d 891 [ 296 P.2d 34 ], cited by respondents, is not in conflict with these cases. In this case as well as those cited above the party charged with the misrepresentations of, the common agent was the person who stood to benefit by them, and the fact that the deceived party had also employed the agent was found not to have any bearing on the result. Our conclusion that the Woods are chargeable with Beck’s misrepresentations regardless of whether Beck was also employed by the appellants is consistent with and dictated by these decisions.

It appears from the record that defendant Beck acquired, in the course of one of the transactions, a promissory note for $7,500 secured by a trust deed. It will be recalled that Beck’s fraud in these transactions is'not disputed. It follows that he should not be permitted to profit from his own wrong. (Civ. Code, §§ 2224 and 3517.) To prevent this possibility