Kuckenberg v. Durkee

Oregon Supreme Court

Kuckenberg v. Durkee

140 P. 627, 70 Or. 593, 1914 Ore. LEXIS 287

DecidedApril 14, 1914

StatusPublished

This text of 140 P. 627 (Kuckenberg v. Durkee) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kuckenberg v. Durkee, 140 P. 627, 70 Or. 593, 1914 Ore. LEXIS 287 (Or. 1914).

Pincite

Opinion

Mr. Justice Bean

delivered the opinion of the court.

It is contended by counsel for defendants that there was error in overruling the demurrer to plaintiff’s complaint and in rendering a decree in favor of plaintiff. The same questions are involved in each proposition, and they may be considered together. It is clear that Weston was the real party in interest in the contract of sale. When the plaintiff appointed Weston as his agent to sell the real estate and signed the agency contract, a fiduciary relation was created between them. Good faith and loyalty to his principal [598]*598required Weston to act solely in the interest of Kuckenberg, and he could not, without the full knowledge and free consent of the latter, become the purchaser of the property either directly or through the medium of a third person. Weston was bound to disclose to his principal the exact nature of his interest in the purchase and all material facts connected. The mere fact of purchase by such agent makes the contract prima facie voidable. In order to sustain the sale, the burden was upon Weston to show that Kuckenberg, with a full knowledge of all the facts, consented to such a sale, and that the same was fair. This he has wholly failed to do. Instead of consenting, plaintiff objected, unless the street lien was paid by the purchaser: Tilleny v. Wolverton, 46 Minn. 256 (48 N. W. 908); Rochester v. Levering, 104 Ind. 562 (4 N. E. 203); 31 Cyc. 1437 et seq.; Mechem, Agency, § 643; Franck v. Blazier, 66 Or. 377 (133 Pac. 800, 802); Savage v. Savage, 12 Or. 459, 470, 8 Pac. 754. The plaintiff desired to sell the real estate in question for the price of $1,900, besides the street assessment thereon of $326.50. Weston drew the agency contract authorizing the sale. The provisions in regard to the purchaser assuming or paying the street lien was omitted from the contract through the fault of Weston. As the evidence shows, Kuckenberg never consented that Weston or anyone else should become the purchaser of the property for $1,900, or the amount for which the contract of sale was made, without such purchaser assuming or paying for the street improvement. The contract executed by Weston, as agent, in the name of plaintiff, was unauthorized. It was made for Weston’s benefit. Mrs. Durkee has no interest in the same except for Weston. It would be inequitable to allow Weston to take an advantage to the [599]*599amount of $326.50 by virtue of the agency contract. Plaintiff had a right to rely upon Weston, as his agent, to properly prepare the agreement according to the undisputed terms of sale which Kuckenberg stated to him when he came to the latter’s house and inquired 'if the property was for sale. In his testimony Weston does not contradict the statements of plaintiff and his son in regard to the terms of sale; that is, that the street lien should be paid by the purchaser in addition to the $1,900. Defendant Weston now seeks to take advantage of his own wrong in not properly drawing the contract, and asks that such an unfair proceeding be sanctioned in a court of conscience by enforcing a contract of sale made in his own interest against the protest of his principal when the matter of the contract of sale was first broached. Plaintiff has never ratified the contract in any way. This case is not like that of Hawkins v. Hawkins, 50 Cal. 558, and other cases relied upon by defendants ’ counsel, where no relation of especial trust or confidence exists between parties entering into a contract written by one of them. Weston had Mrs. Durkee sign the contract of sale for him in order to conceal from Kuckenberg the true nature of the same; that he was the real purchaser. A court of equity should not enforce the contract. Our view upon this phase of the case renders it unnecessary to consider the other questions raised and argued. The contract should be canceled.

The decree of the lower court was right, and it is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. J ustice McNary concur.

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Mr. Justice Bean

delivered the opinion of the court.

It is contended by counsel for defendants that there was error in overruling the demurrer to plaintiff’s complaint and in rendering a decree in favor of plaintiff. The same questions are involved in each proposition, and they may be considered together. It is clear that Weston was the real party in interest in the contract of sale. When the plaintiff appointed Weston as his agent to sell the real estate and signed the agency contract, a fiduciary relation was created between them. Good faith and loyalty to his principal [598]*598required Weston to act solely in the interest of Kuckenberg, and he could not, without the full knowledge and free consent of the latter, become the purchaser of the property either directly or through the medium of a third person. Weston was bound to disclose to his principal the exact nature of his interest in the purchase and all material facts connected. The mere fact of purchase by such agent makes the contract prima facie voidable. In order to sustain the sale, the burden was upon Weston to show that Kuckenberg, with a full knowledge of all the facts, consented to such a sale, and that the same was fair. This he has wholly failed to do. Instead of consenting, plaintiff objected, unless the street lien was paid by the purchaser: Tilleny v. Wolverton, 46 Minn. 256 (48 N. W. 908); Rochester v. Levering, 104 Ind. 562 (4 N. E. 203); 31 Cyc. 1437 et seq.; Mechem, Agency, § 643; Franck v. Blazier, 66 Or. 377 (133 Pac. 800, 802); Savage v. Savage, 12 Or. 459, 470, 8 Pac. 754. The plaintiff desired to sell the real estate in question for the price of $1,900, besides the street assessment thereon of $326.50. Weston drew the agency contract authorizing the sale. The provisions in regard to the purchaser assuming or paying the street lien was omitted from the contract through the fault of Weston. As the evidence shows, Kuckenberg never consented that Weston or anyone else should become the purchaser of the property for $1,900, or the amount for which the contract of sale was made, without such purchaser assuming or paying for the street improvement. The contract executed by Weston, as agent, in the name of plaintiff, was unauthorized. It was made for Weston’s benefit. Mrs. Durkee has no interest in the same except for Weston. It would be inequitable to allow Weston to take an advantage to the [599]*599amount of $326.50 by virtue of the agency contract. Plaintiff had a right to rely upon Weston, as his agent, to properly prepare the agreement according to the undisputed terms of sale which Kuckenberg stated to him when he came to the latter’s house and inquired 'if the property was for sale. In his testimony Weston does not contradict the statements of plaintiff and his son in regard to the terms of sale; that is, that the street lien should be paid by the purchaser in addition to the $1,900. Defendant Weston now seeks to take advantage of his own wrong in not properly drawing the contract, and asks that such an unfair proceeding be sanctioned in a court of conscience by enforcing a contract of sale made in his own interest against the protest of his principal when the matter of the contract of sale was first broached. Plaintiff has never ratified the contract in any way. This case is not like that of Hawkins v. Hawkins, 50 Cal. 558, and other cases relied upon by defendants ’ counsel, where no relation of especial trust or confidence exists between parties entering into a contract written by one of them. Weston had Mrs. Durkee sign the contract of sale for him in order to conceal from Kuckenberg the true nature of the same; that he was the real purchaser. A court of equity should not enforce the contract. Our view upon this phase of the case renders it unnecessary to consider the other questions raised and argued. The contract should be canceled.

The decree of the lower court was right, and it is affirmed. Affirmed.

Mr. Chief Justice McBride, Mr. Justice Eakin and Mr. J ustice McNary concur.

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140 P. 627, 70 Or. 593, 1914 Ore. LEXIS 287, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kuckenberg-v-durkee-or-1914.

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