Fink

Separate appeals are prosecuted by defendant William Weisman and defendant Joseph Toplitzky from a judgment entered against both defendants pursuant to the verdict of a jury. The action was to recover secret profits in the purchase of four separate pieces of real property in each of which plaintiff Fink purchased a one-half interest through defendant Weisman at a price in excess of that agreed by Weisman to be paid to the vendor. Defendant Toplitzky was interested in the transaction as a real estate broker and since the relationship between Fink and Weisman in the transactions and that between Fink and Toplitzky were substantially different *Page 731 we shall for the sake of clarity consider the two appeals separately. The Weisman Appeal. In so far as the evidence may be conflicting it is axiomatic that on appeal we must consider the evidence most favorable to respondent. Pursuant to that rule we are justified in making the following statement of facts, although as to some of them there was a sharp conflict in the evidence: Fink came to Los Angeles in March, 1920, and there met Weisman, who is his wife's uncle and whom he had known for many years. In June or July, 1920, Fink and…

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 726 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 727 [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…