Being unable to agree to the conclusion reached in the leading opinion of the Court in this case, I shall briefly state my reasons for dissenting therefrom.
As pointed out by the Special Referee, in his full and very able report, the case does not turn on the decision of the controverted issues of fact. Granting that the defendants had no intention of doing Scott, the plaintiff, a wrongful act; and, further, granting that the defendant, N.N. Newell, did not promise Scott to bid for him at the sale of the land in question, it does not follow that the judgment should be reversed. The ultimate decision depends upon the principles involved by reason of the admitted relation of the parties. Scott had obligated to sell to J.P. Newell and he had obligated to purchase from Scott the land in question, the 30-acre tract, for the sum of $3,000, paying to Scott the sum of $500 cash, and agreed to pay the balance, $2,500, after the said parcel of land was cleared of the Federal Land Bank mortgage, and to pay 8% interest per annum, payable annually, beginning January 1, 1924, and papers were executed to that effect. At the time of the sale under *Page 435 the land bank mortgage J.P. Newell was the vendee in possession of this 30-acre tract, under the said contract of sale, and it was Scott's duty under said sale contract to clear the said tract of land of the Land Bank mortgage; and it was equally the duty of J.P. Newell to pay to Scott the said $2,500, when this Land Bank mortgage was gotten out of the way. J.P. Newell knew all about this mortgage and knew the purpose for which the land was being sold. There existed, therefore, as pointed out by the referee, a fiduciary relation between these parties, Scott and J.P. Newell, and for this reason neither of them could in good conscience take advantage of any condition that might arise to the injury of the other. Therefore, assuming that at the sale N.N. Newell bid for J.P. Newell, neither N.N. Newell, as attorney, nor J.P. Newell, the principal, had any right to transfer to a third party the bid without the consent of Scott.
Furthermore, the parties to whom the bid was assigned and the deed to the land in question executed, are the sons of J.P. Newell, and the record shows that the necessary money for putting over the transaction was raised at the instance and through J.P. Newell. One can hardly read the record in the case without coming to the conclusion that the deed so executed to the 30-acre tract of land in question was for the benefit of J.P. Newell.
As I view the case, while assuming that there was no wrongful intention on the part of any of the defendants, I think the order of Judge Wilson should be sustained. In support of the views herein expressed I call attention to the authorities cited in the report of the Special Referee, which report will be incorporated in the report of the case.
Therefore, I think the judgment of this Court should be, that the appellants' exceptions be overruled and the judgment of the Circuit Court affirmed. *Page 436