Smith v. Schuttpelz

WASTE, C. J.

This is an appeal by the defendant bank from a money judgment entered in favor of the plaintiffs in the sum of $3,575.63 and costs.

The complaint sounds in damages for fraud. In the first cause of action it is alleged, in substance, that plaintiffs entered into an agreement in writing under the terms of which they were to purchase certain real property from the defendant Schuttpelz who, upon completion of the stipulated payments, was to execute and deliver a good and sufficient deed thereto; that plaintiffs executed the contract and made payments thereunder in reliance upon certain representations made to them by the defendant Threlkeld and the defendant bank, alleged agents of Schuttpelz; that the defendant Threlkeld, as president of the defendant bank, represented that Schuttpelz was the owner of the property and it would not therefore be necessary to go through escrow or to have a title search; that in fact the defendant Schuttpelz did not have title to the property; that the property was owned by and the title thereto was in one Paris; that the only interest which defendant Schuttpelz had in the property was that of a vendee under a contract of purchase entered into with Paris; that the defendant Threlkeld at the time of making the representations above set forth had actual knowledge of the condition of the title to the property; that in reliance upon such representations the plaintiffs executed the written agreement, entered into possession of the prop-. erty, erected improvements thereon, and completed their payments under the agreement, which payments were made

[160]

at the defendant bank; that defendant Schuttpelz was unable and failed to transfer title as agreed; and that plaintiffs thereupon duly rescinded the agreement.

A further cause of action for all material purposes is substantially the same, the plaintiffs being therein designated as the assignees of a contract procured under similar circumstances and covering a separate parcel of property. The defendant Schuttpelz defaulted.

At the conclusion of the trial the court below found in substantial compliance with the allegations of the complaint and gave judgment for the plaintiffs in the sum above mentioned. As already indicated, the bank alone has appealed, contending that the findings generally are without support in the evidence and, specifically, that if and when the defendant Threlkeld made the representations complained of he was speaking and acting in his individual capacity and not as an authorized officer and agent of the bank. It is also urged that the record is destitute of evidence tending to establish an agency relationship between the bank and Schuttpelz.