Twohey v. Realty Syndicate Co.

PRESTON, J.

This is a judgment roll appeal by plaintiff from a judgment for defendants. The appeal affects only defendant The Realty Syndicate Company, defendant surety companies having secured a dismissal of the action as to them.

Respondent and appellant occupy respectively the position of seller and purchaser of real property. Appellant, either by direct negotiations or by assignment, became the purchaser under four instalment contracts of sale executed by respondent and for convenience here designated contracts 1, 2, 3 and 4. On May 28, 1930, by mutual consent, payments made on contracts 1, 3 and 4 were transferred and credited upon contract

[381]

No. 2, so there was subsisting at the time of trial of this action only contract No. 2. This contract was for an instalment purchase of a series of lots for the contract price of $8,250. After the adjustment above referred to and payment of $600 additional by appellant, there still remained unpaid on said contract the sum of $4,247.52, if the books of respondent are to be considered as final in the matter. But appellant denies that said book accounts are correct and by this action she seeks to compel credit on said contract No. 2 of a sum in excess of said balance claimed by respondent to be due thereon and judgment for such excess. Her contention grows out of the following undisputed facts:

In the negotiations which resulted in these contracts appellant dealt exclusively with the agent of respondent, one James R. Farrell, and with the exception of a single $10 item each payment made by her on each of the contracts was made exclusively to and through said agent. Respondent ratified all acts of its agent in negotiating the contracts and all sums reported by him to it were accepted as payments and noted upon its boobs. It further appears that to meet her obligations under said contracts appellant endorsed in blank and handed to said agent for delivery to respondent on account thereof, certificates and shares of listed stock as follows: October 21, 1929, 7 shares; October 30,1929,18 shares: December 26,1929, 1 share; January 15, 1930, 2 shares; December 28, 1929, 2 shares. The market value of said certificates, calculated as of the respective dates of delivery to said agent aggregated the sum of $7,223.50. Had said sum been applied to said contracts appellant would not have been in arrears on any of her purchases. The truth of the matter seems to be that the agent Farrell converted these stocks into cash and reported only the sum of $2,504.83 thereof to respondent, appropriating unto himself the remainder. Appellant seeks to hold respondent liable for the full amount of the proceeds of sale of said stock. Respondent counters with the contention that Farrell was not authorized to collect the instalments due in any form except money and by delivering the stock to Farrell she thereby constituted him her agent for disposition thereof, thus deducing the conclusion that respondent is not liable to appellant therefor.