Peterson v. Ryan

[42]

McCOMB, J.

From a judgment in favor of plaintiff after trial before the court without a jury in an action to recover damages for money had and received, defendants appeal.

There is also a purported appeal from the order denying the motion for a new trial.

The evidence being viewed in the light most favorable to plaintiff (respondent) discloses these facts:

Defendants Grieder and Hillman are real estate brokers as is also their codefendant John H. Ryan. The first two named defendants maintained a real estate office under the name of Calreal Company. Defendant Ryan worked out of the office. He turned over 30 per cent of commissions he earned to defendants in return for desk space, telephone service and insofar as the office was concerned complete overhead.

All business transacted by defendant Ryan was on forms provided by his codefendants upon which appeared the firmls name, Calreal Company, and all commissions were payable to Calreal Company.

On or about January 14, 1949, defendants Hillman and Grieder placed an advertisement in the Southwest Wave as follows: “Units—Doubles—Plats. Call us for best investments. Calreal TW-4335.” Sometime in January plaintiff read the advertisement and called the Calreal Company. She talked to defendant Grieder who asked her to come to the office on Sunday. She did not go and on Honday said defendant called plaintiff, stated he was very busy, and would be unable to show her any property but that he would send out one of his men.

The same afternoon defendant Ryan appeared at plaintiff’s home. He showed her various properties and finally a parcel of improved realty which plaintiff agreed to buy. The purchase price was $18,000 of which $5,000 was to be a down payment. Plaintiff made a check payable to Calreal for such amount which was torn up since she lacked $50 in her bank account to cover it. She then wrote another check for $4,900 payable to Calreal Company which defendant Ryan induced her to cancel and make out one in his name, stating he would hold the. check in the real estate office until the property went through escrow.

However that afternoon defendant Ryan cashed the check telling plaintiff when the bank called her that he would be right over and explain why he wanted to cash the check at