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Show rare 4 Friday, September 12, 1958 THE DAILY RECORD A SPECIAL FEATURE SERVICE FOR DAILY RECORD READERS flctahle faeciAfonA On CaAeA ijf &ecal JfritmAt in the the State etf Utah Supreme CcuH: Thereafter a contract of sale and escrow agreement were prepared and presented to Mr. end L. Mrs. Harper. By it they were to A. Reese, Plaintiff and Appellant, receive $30,000 but out of It they v. were required to pay the encumThomas R. Harper, brances on the property, includ0, Defendant and Respondent. ing a mortgage balance of and some crop mortgages, the exact amount of which is not CROCKETT, Justice: A. L. Reese sued Thomas R. shown in the record. The Harpers Harper for $1,500 as a real contend that the obligations agestate commission he claims for gregated substantially $15,000 and attempting to sell Harpers farm. the trial cdurt so found. Just A jury made findings adverse what the exidence will support to plaintiff, and judgment was as to encumbrances above the entered accordingly, from which $8,500 mortgage is not of controlThe Harpers ling importance. he appeafl. The problem of concern here version of the proposen transacis the nature and extent of the tion, which was accepted by the lury end the trial court, was that duty of a real estette agent owes Mr. Harper had understood that to his principal, and whether they would receive $30,000 net plaintiff discharged St. their property, and that the for Mr. Reese is a licensed real would assume and pay estate broker, doing business as purchaser the encumbrances. This would AtEas Realty Company in give them somewhere reasonably Utah. He tiontaicted Mr. near the $45,000 they were askHarper and procured him to list ing; whereas if they had to for aaT.e fail dry farm of 700 acres the encumbrances out of the pay0, in Hansel Valley in western Box would get less than half Elder County. The listing author- the they at which Harper $45,000 ized Rees to find a buyer at $45,-0the listing. Defendant or such other price as might procured out that the Receipt, parbe agreed upon. Five days later points the parts referred ' to ticularly Reese proposed (to Harper a deal above, readily gives an impreswith one Ezra J. Zollinger for sion consistent with their under$30,000. Reese presented to Harper a document entitled Receipt standing. Reese argues that The and Agreement to ' Purchase the plaintiff Receipt, properly read and (hereinafter called Receipt). The understood, is clearly an offer to latter looked It over cursorily selt the farm for $30,000 free of and signed. emcumbrances, as provided in the In view of the contentions of proposed contract which the IN THE SUPREME COURT OF THE STATE OF UTAH $8,-50- Lo-ga- n, $30,-00- 00 the parties, discussed below, these Harpers refused to sign; that facts are of critical Importance: Harper is therefore 'bound to pay the figure representing the purchase price, was filled in the prinited form by hand; adso on a separate line, noticeably separated from the other lines of fine print in the document, were the words: Encumbrances, except the word NONE was NONE; also in handwriting. Due to such fact, and that the handwriting is much larger than the fine print of the document, in looking at it, the eye can pick out the $30,-0and the line with the words Encumbrances, except NONE, much easier (than the other parts thereof. $30,000, 00 i the commission on the deal be- cause Reese procured Zollinger as a ready, willing and able purchaser upon the terms Harper had Mr. Reese further agreed to. avers that as between him and Harper, their dealings were at arms length; that he was under no particular duty to coddle and spoonfeed Harper; that inasmuch as the latter had ample to read the Receipt and thereater voluntarily signed it, he is precluded from questioning its contents and is bound by it. The above contention is sound as between people dealing with op-port- nity each other under usual circumstances. But the relationship of real estate agent and client makes the situation quite different The agent is issued' a license and permitted to hold himself out to the public as qualified by training and experience to render a specialized service in the field of real estate transactions. There rests upon him the responsibility of honestly and fairly representing the interests of those who engage his services, and upon failing to do so his license may be revoked (1). Accordingly, persons who entrust their business to such agents are entitled to repose ome degree of oonfi-dnthat they will be loyal .to such trust and that they will, with reasonable diligence and in good faith, represent the interests of all thedr clients. Unless the law demands this standard, instead of being the badge of competence and integrity it is supposed to be, the license would serve only as a foil to lure the unsuspecting public is to be duped by people more skilled and experienced in such affairs than are they, when they would be better off taking care of such business for themselves. The authorities uniformly affirm that because of the specialized service the real estate broker offers in acting as an agent for his client there. arises a judiciary relationship between them(2); that it is incumbent upon him to apply his abilities and knowledge to the advantage of the man he serves; and to make full disclosure of all facts which his orinctaal should know in transacting the business (3). Failure to dischlarge such duty with reasonable diligence and care precludes hK. recovery for the service he purports to be rendering. In Reich v. Christopulous(4) the broker had informed his principal that he had a check for $5,000, intimating that it was an outright down payment on the transaction; whereas, in fact the check was given only subject to conditions not disclosed to the principal. It was held that this failure to disclose was a breach of duly precluding recovery. A case closely analgous to the oe 4 Ife offers a ready-mad-e market for all types of businesses. quick analysis of these columns will reveal many valuable prospects for your services. A subscription to the DAILY A entitles you to use of this material. RECORD HZ LIENS instant one is Duncan v Barbour (5). A broker was authorized to find a sale for property on terms of 20 cash, payments over a period not less than five years, and bearing 4 Ineimt Th broker procured a deal f a substantially different down payment and certain cither differences in terms. He drew. u!n a contract and submitted it to the seller. At the trial there was a dispute as to whether the seller had in fact understood end agreed to the new terms. .The court observed that the broker had not discharged his duty in thiait he had not explained the contract to his client nor called his attention to the variance irtterms. Upon suit of the broker for his commission the court held: Under these circumstances It was the duty of the a rent to disclose to his principal the vital differences in the terms. . . . This duty was not discharged by simply handing to the owner an unsirned contract It was his dutv to Inform his nrincinal of all facts which might influence his principal in accepting or rejecting the offer. An agent is not entitled to recover until he has fully performed this duty W r'SrTd the cl'vtriire jurt stated as salutary and as controlling here. Without burdening this opinion with a discussion of the authorities cited by the plaintiff, we observe that a careful reading will disclose that they are clearly distinguishable from the instant situation (6). It is pertinent to observe that the broker Rees had Mr. Harper at' even more disadvantage than might normally be expected. The wide difference in experience and business acumen resulting in the parties being in an unequal position for bargaining are things which the court and jury were entitled to take into consideration in determining the matters in contention between them (7) Mr. Harper was a farmer, obviously inexperienced in business; was hard of hearing and therefore had some difficulty in conversing with others; and in addition thereto the court made an express finding indicating that he was somewhat inept and lacking in acumen with respect to business affairs. The issue was submitted to the jury as to Whether Mr. Reese ... ... 1609 Partial Reloasos of Mortgagos 765 D A Skiby to J M Bringhurst etc; $594; 34 IS IE 780 T Addison Bennion to Standard Bldrs Supply; $496; 5 In1609 dian Hills C 695 Fed Bldg & Ln to J Bevan 7C1 Chaester Ray Davis to Stand12 St $10; Chamberlain; ard Bldrs Supply; $210; 7 12 MSary Hills B ' B 936 Eqult Life Assur Soc to Al782 Olaf T Stevenson, Jr to Standvin N Barker; $1; 3 2S 1W ard Bldrs Supply; $368; 11 Indian Hills F L Zambukos to Standard Bldrs Supply; $136; 18 IS 3W 274 Donald B Farrish to U S Trees Dept; $411; 1436 Bev-eri- y 783 Virginia Dr etc Second Mortgages 1609 931 Raymond ward B Erekson; Cherry Ridge Sub $10; Ed- 33 ... -- WE CONCUR: Roger I. McDonough, Chief Justice Lester A. Wade, Justice Geo. W. Wortben, Justice F. Henri Henriod, Justice 1. 61-2-- U.C.A. 1953. 11 2. See St 214 . P.2d Germain v. Watson, 99, (Cal. 1950); Haymes v. Rogers, 70 Ariz. 408, 222 P.2d 789; Anderson v. Thfctcher, 76 Cal. App. 2d 50, 172 P2d 533. 3. See 8 Am. Jur., Brokers, Sec. 86. 4. 123 Utah 137, 256 P.2d 238. 5. 188 Va. Rep. 53, 49 S.E.2d 260. b. Qaiff Realty Co. v.' Better Buildings, Inc., 120 Utah 344, 234 P.2d 842; Johnson v. Allen, 108 Utah 148, 156 P.2d; Ashworth v. Charlesworth, 119 Utah 650, 231 P.2d 724; Little v. Fleishman, 35 Utah 566, 101 35 Utah 566, 101 P. 984; Curtis v. Morte risen, 1 Utah 2d 354, 267 P.2d 237; Blackburn v. Bozo, 82 Utah 556, 26 542. Pd 7. Lewis V. White, 2 Utah 2d 101; 269 P.2d 865. Quit Claim Deeds 1609 775 C W Gibby to Tee Branca; $10; 304 Longview Pk Add to David St 777 Lucy A M Kimball S Shingle ton; $250; 19 Albans Sub 784 Adalene A Ruben to Arthur Ruben; $10; 18 2S IE 859 Valley Inv Co to Verna B MelvfUe; $1; 4 IS 1W 870 CUara Hollingshaus to Alfred .19 6 $10; Holliirgshbus; Evans Add to Poplar Grove 877 Raymond B Glalttli to Raymond B Glalttli; $1; 3 2S IE 209 882 O K Hammond to James W S8 'F J Shields v Ivor E Bradley; Ethirrgton; $10; 1 47 B & labor material 962 Ralph M Van Wyck to Otto $94.50 99 Clyde A Davies v Jack- - N P Omer; $10; 14 2 Harring- Small Claims Court 210 P Henderson to had discharged bis duty hereinabove discussed. It expressly found that he did not sufficiently inform or make dear to Mr. Harper who Was to pay the mortgage and encumbrances; and further that he did not fairly disclose to Mr. Harper all material facts which Mr. Reese knew . . . oortcerriing the transaction In view of such finding, which is supported in the evidence, the plaintiff Reese cannot here contend thbt he discussed and made plain the contents of the Receipt and the nature of the transaction to Mr. Harper. In fact, during cxossexaminaition Mr. Reese manifested a somewhat indifferent attitude toward the suggestion that he should have done so. He observed that 4it isnt often that all the details of an earnest money agreement receipt is read, implying that It was unnecessary to do so, but that the customer should rely upon the agen which is exactly what Mr. Harper did. There being support in the record for the determination made below that the plaintiff had not discharged his duty In connection with the attempted sale of the property for the defendant, the judgment Is affirmed. Costs to defendant. 0C Adair; $50 rent ton, Donnelley Newells Sub 1610 Lon Rodney Kump v Streator 000 Lillie S Brown to A Chevrolet Co; $99.10 negligent Constn Co; $1; 88 repair to auto ton PI P Neil-so- n 3 Bur- |