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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 728 We granted respondent's petition for rehearing as to appellant Toplitzky to give further consideration to respondent's claim that the instruction which we held prejudicially erroneous to Toplitzky was substantially similar to certain instructions requested by Toplitzky and hence the error was invited error of which Toplitzky could not complain. [1] We are satisfied that there is nothing in this point. The instruction, the giving of which we held was prejudicial error, was as follows: "If the defendant Toplitzky, at the time when he acted as broker in these deals, knew that the property was being purchased for Mr. Fink and Mr. Weisman jointly, then he owed the duty to divulge to Mr. Fink all he knew with respect to the transaction, including the purchase price."
The proposed instruction, most strongly relied upon by respondent as substantially similar, read: "The defendant Toplitzky was under no duty or obligation to disclose to the plaintiff the purchase price of said properties, nor to disclose to plaintiff, Fink, any of the circumstances surrounding said purchase, unless at or prior to the purchase *Page 729 thereof the defendant Toplitzky was advised that said properties were being purchased for or in behalf of plaintiff, Fink, or for and in behalf of plaintiff, Fink, and the defendant Weisman, as copartner."
An examination of the instruction given and the instruction proposed will show that they are not substantially similar. The instruction given relates to the case where the jury finds that Toplitzky knew of Fink's interest. The proposed instruction relates to exactly the opposite case, where the jury finds that Toplitzky did not know of Fink's interest. A perfectly correct statement of law is involved in the proposed instruction. Unless Toplitzky knew of Fink's interest he could owe no duty of disclosure to Fink. But that is not the same thing at all as saying, as the court did in the instruction given, that if Toplitzky did know of Fink's interest he owed Fink a duty of disclosure. We have held that Toplitzky would only owe Fink a duty of disclosure: 1. If he knew of Fink's interest; 2. If he was acting for Fink in the transaction; and 3. If he had reason to believe that Weisman, if Weisman had knowledge of the facts, was concealing them from Fink. Toplitzky might have proposed instructions negativing each of these conditions separately and advising the jury that in the absence of such condition he owed no duty of disclosure to Fink. That would not justify the court in giving an instruction that given one of such conditions only, without the other two, Toplitzky would owe Fink a duty of disclosure.
A simple example will make this clear. Suppose A is on trial for the murder of B and proposes an instruction that unless B died within a year and a day after receiving the fatal wound A should not be found guilty of murder. That would not justify the court in instructing the jury that if B did die within a year and a day they should find A guilty of murder. The two cases seem to be exactly parallel.
[2] Respondent's further claim that it does not appear from the record that the instruction held erroneous was not given at Toplitzky's request seems frivolous and is only noticed because it was again urged in his petition for rehearing. The record lists the instructions requested by Toplitzky and this instruction does not appear among those so listed. We are satisfied that this is a sufficient showing on this point. *Page 730 [3] For the first time respondent urged on petition for rehearing that Toplitzky interjected the question whether he had a fiduciary relationship to Fink into the case by his answer. We might ignore this point as raised too late. (2 Cal. Jur., pp. 790-792.) However, the complaint counted on Toplitzky's concealment and as we pointed out in our original opinion Toplitzky would owe no duty of disclosure in the absence of a fiduciary relationship.
[4] Lastly respondent claims in his petition for rehearing that the instruction held erroneous was properly applicable to the fifth count of the complaint which charged a conspiracy. It is a complete answer to this that we cannot know whether the jury found a conspiracy under the fifth count or merely a breach of duty as alleged in the first four counts of the complaint.
We are satisfied with the disposition of Toplitzky's appeal in our opinion filed herein on January 28, 1933, and readopt that opinion in all respects.[*]
The judgment against appellant Toplitzky is reversed and the cause remanded for a new trial as to Toplitzky, with directions to the trial court to allow the amended complaint to be further amended, if plaintiff so desires, to correct the defects therein attacked on this appeal.
Nourse, P.J., and Sturtevant, J., concurred.
[*] REPORTER'S NOTE. — The prior opinion of January 28, 1933, re-adopted by the court, is as follows: