
    [Civ. No. 2028.
    Second Appellate District, Division One.—
    June 12, 1919.]
    H. A. STOUFFER, Respondent, v. DOROTHEA H. EYMANN et al., Appellants.
    
       Broker’s Commissions—Exchange of Property—Misrepresentations as to Value—Proof of Damage.—In an action by a real estate broker to recover the commission agreed to be paid for effecting an exchange of certain property of the defendants for that of another, the defendants, in seeking to avoid liability by setting up the defense that the plaintiff, as their agent, had been guilty of fraud in that he had misrepresented the value of the property which was received by them in exchange, must allege and prove that the property received by them in exchange for their own land was at the time of the transaction of a less market value than the latter property.
    APPEAL from, a judgment of the Superior Court of • Los Angeles County, and from an order denying a new trial.- Fred H. Taft, Judge. Appeal from order dismissed; judgment affirmed.
    The facts are stated in the opinion of the court.
    Andrew J. Copp, Jr., for Appellants.
    Minor Moore for Respondent.
   JAMES, J.

Appeal by defendants from a judgment in favor of plaintiff and from an order denying defendants’ motion for a new trial.

.'The complaint stated in the ordinary form causes of action upon two promissory notes admitted to have been executed by .the defendants and made in favor of the plaintiff. The notes were given as the result of an agreement made between plaintiff and defendants, the. amount represented thereby being for commissions to be paid to the plaintiff by defendants in consideration of services rendered. Plaintiff was a real estate broker and was instrumental in effecting an exchange of certain property of the defendants in the county of Riverside, California, for real property in the state of Colorado. Defendants in their 'answer sought to avoid liability on the notes by setting up the defense that their agent had béen guilty of fraud in that he had misrepresented the value of the Colorado property which was received by them in exchange for the California real estate. It should be remembered, then, that this is not an action against the other party to the exchange for falsely representing the value of his property, but is an action based solely upon an alleged breach of confidence committed by an agent toward his principals. In such a ease, it was incumbent upon the complaining principals to allege and prove that the property received by them in exchange for their own land was of a less market value than was the latter property; in other words, if the Colorado property was worth as much in the market at the time of the alleged transaction as the Riverside property, no damage would be shown, regardless of the fact that the Colorado property might have been represented to be of a value greatly in excess of its actual market worth. The trial judge, after permitting an amended answer to be filed, announced that he did not consider that this amended answer stated any defense to the causes of action pleaded by the plaintiff on the notes, but allowed the defendants to introduce evidence as to what representations were actually made by the plaintiff. This evidence having been introduced, the court denied the defendants the right to introduce other offered evidence not going to the point mentioned, and ordered judgment for the plaintiff. The evident conclusion of the trial judge was that the facts shown in evidence did not establish a case where the defendants either relied upon, or were warranted in relying upon, statements made by their agent; that the latter were, as to the question of the value of the Colorado property, mere opinions, and that the defendants having pursued an inquiry independent of that in which the plaintiff took a part, showed that they did not rely upon his statements, and hence the injury, if any, could not be attributed to the plaintiff. Upon an examination of the evidence we are inclined to agree with the trial judge upon this proposition. However, whether that question was correctly resolved or not, we find exhibited in the record an insurmountable obstacle to the defense claimed on the part of the defendants. Nowhere in the answer is there any allegation showing what the market value of the Riverside property owned by the defendants was; hence it is not made to appear by that pleading but that the Colorado property was worth as much, if not more, than the equity owned by the defendants in the Riverside property, the latter property having been exchanged subject to a large encumbrance by way of trust deed. We find in paragraph 1 of the answer, this clause: “That on said last-mentioned date, said real property was of the reasonable exchange value of sixty thousand dollars, subject to a lien of deed of trust thereon for the principal sum of twenty thousand dollars. ...” This allegation referred to the Riverside property. It contains no statement at all of what the market value of that property or the equity was. In an alleged counterclaim set up in the answer, the defendants seek to recoup damages in the sum of $35,663, which they allege as being “the difference between the value of said Colorado property, as represented, and the actual value of said property on or about the said twenty-fourth day of January, 1914.” In the preliminary paragraphs of the alleged counterclaim the allegations of the answer, including that which we have quoted, are made a part -thereof by reference. It will be at once discerned that there is nothing in the counterclaim, added to the allegations of the main answer, which shows what the value of the Riverside equity was; and the allegation as to the amount of damages does not help the case of defendants any, for, as we have stated hereinabove, if the value of the Colorado property equaled the value of the Riverside property, no damage would be shown for which recovery could be had against the agent. In point generally on this proposition are the cases of Baker v. Brown, 82 Cal. 64, [22 Pac. 879], Holton v. Noble, 83 Cal. 7, [23 Pac. 58], and London etc. Fire Ins. Co. v. Liebes, 105 Cal. 203, [38 Pac. 691].

Por the reasons given, we conclude that the appeal is without merit. At the time the order denying a new trial was made the law did not authorize an appeal to be taken therefrom. (Hirsch v. All Persons, 173 Cal. 268, [159 Pac. 712].) The questions sought to be raised thereby are all presented on the appeal from the judgment.

The appeal from the order denying defendants’ motion for a new trial is dismissed. The judgment appealed from is affirmed. #

Conrey, P. J., and Shaw, J., concurred.  