Zak

Plaintiff, Lloyd Smith, appeals from an adverse judgment in his consolidated actions for fraud, rescission, declaratory relief, and to quiet title against respondents, L. Ed Zak and Marjorie W. Zak, to a parcel of property that is the subject of a pending condemnation action. Smith contends that the trial court failed to properly consider and apply the law with respect to the fiduciary duties of a real estate broker to his client, and, therefore, erred in its rulings on the exclusion of certain evidence. We have concluded that the judgment must be reversed for retrial.

The record indicates that in 1953, Smith, a retired switchman who lived in Redding, acquired for $6,600, a 2.34-acre parcel located between Burton Avenue and Wanda Lane near San Jose. In February 1964, Smith visited his Santa Clara property and decided to put it on the market again. As it had been common knowledge since 1961 that the state was building a freeway in the vicinity of Wanda Lane, Smith contacted the state to see if it was ready to condemn the property. Smith was told that the state would be interested in acquiring some or all of his property, but not for at least five years.

Smith was not…