#### STANTON, et ux., Appellants, v. MERCHANTS’ LOAN & TRUST COMPANY et al, Respondents.

(168 N. W. 746).

(File No. 4327.

Opinion filed Sept. 3, 1918.

Rehearing denied November 4, 1918).

1. Cancellation of Investments — Land Exchange, Broker’s Commission, Recovery Back — False Representations re Value, Independent Investigation Re — Evidence, Sufficiency.

■ Where plaintiffs, who had employed defendant to assist in making an exchange of their lands for other lands, he to have a percentage commission on basis of value, sought to recover from defendant part of the amount paid him, and to have can-celled their note and mortgage for the balance, on the ground of false representations made to them by defendant as to the lands to be exchanged; held, that the evidence fails to show such misconduct on defendant’s part as to sustain recovery; the evidence showing that prior to entering into the contract one of plaintiffs personally examined the land to be exchanged to them, and was at liberty to make inquiries relative to character and value thereof, trial court having properly found that plaintiff made independent inquiries and satisfied himself from other sources than defendant, concerning same.

2. Real Property — Land Exchange — Recovery Back of Broker’s Commission — Mutually Inflated Values, Conflicting Evidence, Sustained Findings.

Where, in a transaction of exchange of plaintiff’s lands, through a broker, for other lands, the evidence sustained trial court’s findings that each party had placed substantially equal excess values on the land for the purpose of the exchange, held, that, the findings being based upon conflicting testimony, and, not ¡being contrary to clear prepondance thereof, they will not be disturbed on appeal.

3. Evidence — Broker’s Procurement of Land Exchange — Recovery of Paid Commission — Defendant’s Suppressive Statement to Third Person Re Land Value, Competency, Independent Investigation as Affecting.

Where, in a suit to recover commissions paid a broker for effecting an exchange of plaintiffs’ lands for other lands, on the ground that defendant falsely overestimated values of lands to be exchanged, held, that defendant’s statements to a third person, who had stated that a certain tract to be exchanged to plaintiffs was not worth a named sum per acre, that he (defendant) would dislike to have anything said to plaintiff to the effect that said land was not worth said sum, was non-prejudicial to plaintiffs as showing defendant’s ¡bad faith, the evidence show*19ing that plaintiffs made an independent investigation as to character and value of said lands, and relied upon thier own judgment concerning same.

4. Damages — Measure Of — Broker’s Unconscionable Commission re Land Exchange — Acceptance of Exchange, Effect, re Commission — Estoppel.

Where plaintiffs, an exchange of whose land ior other lands had been effected by defendant under an agreement to pay him an unconscionable commission, sought to recover the commission after accepting the benefit of the exchange, held, plaintiffs will not he heard to complain that the commission was unconscionable.

Whiting, P. J., dissenting.

Appeal from 'Circuit Court, Sanborn County. Hon. Frank B. Smith, Judge.

Action ¡by Frank Stanton and another, against The Merchants’ Loan & Trust 'Company, and George H. Randall, to secure surrender of a promissory note and cancellation of a mortgage securing payment of same, and for recovery of money. From a judgment for defendants, and from an order denying a new trial, plaintiffs appeal.

Affirmed1.

*Null & Royhl,*for Appellants.

*Williams & Sweet,*and *Spangler & Haney,*for Respondents, (i) To point one of the opinion, Appellants cited:

Houck vs. Brownell, 120 111. 161.

POLLEY, J.

This action was brought by plaintiffs to secure the surrender of a promissory note for $5,000 and the cancellation of a mortgage given to secure payment of the same and for the recovery of $7,480 of plaintiffs’ money, which came into the ¡hands of defendant Randall, and which plaintiffs' claim has not been properly accounted for. The case was tried to the court without a jury. Findings of fact and judgment were for defendants, and plaintiffs appeals. ,

The controversy grew out of an exchange of a tract of 3,520 acres' of land1 owned by plaintiffs in ¡Ouster county for land owned by one De Witt, situated in Sanborn and Miner counties. About the 1st of January, 1914, plaintiffs employed the defendant Randall to assist them in making a sale of their said land or an exchange thereof for other laud. The value placed on plaintiffs’ land was $63,360, and1 upon this basis Randall was to. have a *20'commission of $3 iper acre for making a sale or exchange. Pursuant to such employment, Randall entered into negotiations with the said De Witt for the exchange of plaintiffs’ 'Custer county land for Dé Witt’s land ini Sanborn and -Miner counties.. The De Witt land consisted of -one quarter section valued at -$125 per acre, a half section valued at $75 iper acre, and a quarter section valued1 at $70 per acre, aggregating in all the su-m' of $55,200. On the 6th day of January, 1914, plaintiffs and the said De Witt entered into a contract in Writing for the exchange- -of said lands on the basis of above valuations, and within the 60 days following said; -date, the terms -of said1 contract were fu-lly carried out by the exchange ,c;f -deeds by plaintiffs and the said De Witt. Upon 'the basis of the above valuations, defendant Randall’s commission amounted' to $10,560. Plaintiffs paid this sum by giving him $5,560 in cash and by -giving him a note for $5,000 secured by a mortgage on a quarter -section of the De Witt land. This note and mortgage were executed and- delivered -on- or about the 22c! day of May, 1914. Plaintiffs now -claim- that, at the time -o-f the making of the -said exchange, they -relied wholly upon defendant Randall for information relative to the value o-f the- De Wiitt lands, and that the value placed thereon by said defendant was greatly in excess' of its actual value, and in excess of what -said defendant knew to be its; value, and 'that, because -of such excessive value placed thereon iby -defendant, they paid a great deal ¡more for said land than it -was worth — -in -other word's, that said Randall did not act in good1 faith Iwlit-h plaintiffs, but concealed -certain facts relating 'to the val-u-e o-f s-ai-d -land, an-cl, for that reason, he was not entitled -to any commission or other -compensation for his said services.

[1, 2] After a careful examination of the record, we are of the opinion that the -plaintiffs have failed to- show such misconduct -on the part of s-aid1 defendant as entitles them- to recover the commissions they had paid to Randall. The undisputed evidence shows that, before entering into the ¡contract of exchange, one .of the plaintiffs went from h-is home in Custer county and, in company with th-e said Randall, personally examined the said Sanborn and Miner -county lands, and that, while in these -counties, he was at liberty 'to -make such inquiry- relative to the character and value of said land -as -he saw fit, and there is evidence tending to- prove, *21and the court found1 as a fact, that said plaintiff -did make independent inquiries and .satisfied himself, from sources other than the said, Randall, of the character and value of said land. It is clear from the evidence that, for the purposes of this trade, both •plaintiffs and said De Witt greatly inflated the value of their respective holdings. Upon this point the trial court made the following findings of .fact:

“That the values put upm the plaintiffs’ lands and the De Witt lands in the aforesaid' written -contract were about equal in excess of the actual cash values of the same; that said values ■were not understood or intended by the parties ¡to represent the actual cash value of said lands at the -time of the execution of said1 -contract, and were merely estimates for the .purpose of the trade or exchange; that the plaintiff Frank Stanton, who acted also for and- on behalf of his wife, the plaintiff Anna Stanton, before entering into said contract -personally and independently of the defendant Randall, investigated the De W-itt lands, was at ■liberty to and did make independent inquiries in relation, to the value thereof; that defendant Randall -did- not deceive or attempt to deceive said plaintiff's' by any representation as to the 'value of the same; that said plaintiff relied on his own judgment, as -well as on defendant Randall’s judgment, as to the advantage of the trade; and that the trade in view of all the circumstances was an advantageous transaction for plaintiffs.

“That ¡defendant Randall, in all matters connected with said employment, acted in good faith, with reasonable skill, and without intending to deceive or defraud the plaintiff in any respect whatever; that whatever advice was given ¡by him; to plaintiffs, and whatever ■ statements were made by him; respecting the value of the -lands involved in ¡the trade, were honestly given and made according to his best judgment and honest belief as to the same.”

[3] These findings are not only based upon conflicting testimony of plaintiff and defendant, and therefore, unless, contrary to the clear preponderance of the evidence, should not be disturbed by this -court, but, in our opinion, are fully warranted by the evidence. In support -of their contention, that ¡said Randall -concealed from, plaintiffs certain facts- tending to show that the De W-itt lan-d was not worth- as much as plaintiffs paid for it, they showed by the testimony of one Bennett, that he had a conversation with *22Randall anidi De Witt, while Randall and' plaintiff were in S'anborn county, in which' conversation the witness Bennett said that he would not say that a certain quarter section of the De Witt land then1 under discussion' was worth $75 iper acre, to which the defendant Randall replied that he would dislike to have anything said to plaintiff to the effect that said land was worth less than $75 per acre. This would tend to- indicate had faith on the part of Randall, and, had plaintiffs 'been depending wholly upon him for information relative to the value of the De Witt land, we might reach ,a different conclusion; but, .from all the evidence and .the circumstances surrounding the case, it is .clear that plaintiffs relied1 upon their own. judgment and inquiries» made 'by them in arriving át what was a reasonable value of the De Witt land-.

[4] It is next contended by plaintiffs that the compensation received by Randall was so great in proportion to the services rendered as to be unconscionable. With this contention we fully agree, but that does not necessarily vitiate the transaction. If plaintiffs considered, as they evidently did, that they were making a large enough profit on their own land' to justify them, in paying the defendant what .they agreed to pay him to bring .about the trade, they cannot now, after having reaped the benefit of the transaction, be heard to. complain that defendant was' unconscionable in exacting a high .price for his services.

The judgment and order appealed from1 are affirmed.

• WHITING, P. J.

(dissenting). I am unable to concur in the. foregoing .decision. This action was brought iby principles to recover certain .money which they had paid to their agent as part compensation for such agent’s services, and to have canceled a note given to such agent as further compensation for such services. Their claim is that, after the payment had been made and the note given, they learned that their agent had been unfaithful to the trust imposed in him.. This action is ini no sense one to recover damages resulting from: the breach, of such trust, though its rulings upon evidence and! its findings disclose that the trial court permitted the cause to be tried exactly as though it were such an action. It needs no citation of authorities: to sustain the proposition that an agent is entitled to .compensation, for services performed, in the honest discharge of his- .trust, and1 this regardless of whether or not his services have resulted! in profit to his prin*23cipal; Likewise it need's no citation of authorities to sustain the proposition that no agent is entitled to compensation where he has 'been unfaithful to his trust, even though, out of the transaction in which he was engaged, profit may have -come to his principal. The trial court, -as- evidenced ¡by the findings quoted- Iby -my colleagues, seems to have been of the opinion (in which opinion my colleagues seem- to concur) that the. .fact that the .-principals relied in part upon information other than that received from, their -agent, and, so relying, acted 'in ¡part, at least, upon theii: own- judgment, affects their right of -recovery. In such a m-o-nstrous proposition- I cannot concur. Carried to its logi-c-al result, it would mean that, no matter how -unfaithful he was to- his -trust, an agent woul-d1 be entitled to -compensation whenever his principal acted-, relying in part, or even in whole, upon inofrm-ation gained from- other sources. That the erroneous theory upon w-hi-ch thie cause was tried is still maintained hy respondent’s is evidenced iby their brief. They say:

“-Can- -there by any -doubt, in the face of the above evidence, that Stanton wen-t there to personally examine and investigate the De Witt fends, and1 did not rely or intend to rely -on -anybody’s judgment -except his own?”

“Assuming -for sake of argument that, as appellants contend, Randal-l in this 'case practiced fraud on appellants, yet under the above -testimony no -court or -person could' say that the plaintiff relied upon it.”

“Appellants -charge fraud, and seek to recover money -claimed to 'have/been -obtained from, -them -by such fraud. -Su-ch -evidence of the actual value -of appellants’ land is very material in- tending to show that there is actual gain to them1 instead of loss'.”

I am not unmindful -of the fa-ot that -among the findings of the trial court there are certain ones which, if .standing alone, would support such court’s conclusion and judgment. But when a -cause has been tried upon an entirely wrong theory under which a large amount -of immaterial, irrelevant, and incompetent evidence has been improperly received and immaterial facts- treated as o-f controlling importance by the trial court, a new: -trial -should be ■had to the end that due -weight be given to that which is material, and the immaterial rejected.