Gerhardt v. Weiss

FLEMING, J.

According to the pleadings, this is yet another case of the faithless agent attempting to hide his double-dealing behind the skirts of the statute of frauds. But skirts are not as voluminous as they once were nor the coverage of the statute as comprehensive as it was sometimes thought to be. Unshapely limbs and unsightly conduct alike are today disclosed to public view, and both must risk the consequences of full exposure.

Gerhardt brought suit against the Weisses to impress a constructive trust on certain real property held in the name of Ruth Weiss, the wife of real estate agent Harry Weiss. The defense of the statute of frauds was first heard, and the court dismissed the suit as barred by the statute (Civ. Code, § 1624, subds. 4 and 5), because, concededly, Gerhardt had no memorandum in writing signed by either defendant. The cause is here on appeal.

According to Gerhardt’s complaint, he employed Harry Weiss, a real estate broker, to purchase on his behalf certain real property in California from owners who lived in Alaska. At Weiss’s request, Gerhardt sent Weiss a signed authorization to act as his agent for 90 days to purchase the property for $50,000, an authorization whose text is attached to the complaint.

1

Weiss promised Gerhardt he would negotiate with

[116]

the owners of the property for its purchase and proceeded to do so, but although he obtained an agreement from the owners to sell for $39,375 he reported to Gerhardt he had been unsuccessful in his negotiations. Instead of acting on Gerhardt’s behalf, Weiss opened an escrow in the name of his sister-in-law, Marion White, who took title to the property and then conveyed it to Ruth Weiss, Harry’s wife. The complaint, charging that Ruth Weiss acted in concert with her husband, with full knowledge of his relationship to Gerhardt, sought to impress a constructive trust on the property and compel its conveyance to Gerhardt.

In our view the statute of frauds does not apply to the case. Essentially, this is a suit in equity to impress a trust on a faithless fiduciary and not an action at law to enforce a contract. An agent is classified by the law as a fiduciary and holds a confidential relationship to his principal. (Civ. Code, § 2322, subd. (3);