Coover v. Cox

CRAIL, J., pro tem.

On December 6, 1923, the plaintiffs delivered to a real estate salesman, named Washire, in the office of defendant Cox, a cheek for one thousand dollars as a deposit upon the purchase price of certain real estate, and received from Washire a “Sales Deposit Receipt” signed “Vincent J. Cox, agent, by Vincent J. Cox Pr H W.” The check was cashed by defendant Cox. The sales deposit receipt provided for the payment of the balance of the purchase price in cash through escrow upon delivery of a deed and a guaranty of title showing title to be in the vendor “free & clear also unrestricted.”

On December 31, 1923, the broker’s license of defendant. Cox expired and in connection with his license for 1924 he and the appellant surety company, as surety, executed to the people of the state a real estate broker’s bond, as required by section 9a of the General Laws, Act 112. The condition of the bond was that the defendant Cox would comply with said law and would faithfully perform every undertaking entered into by him as a licensed real estate broker. It also authorized the plaintiffs to commence and maintain an action against appellant for the recovery of

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any damages sustained by the failure of the broker to perform his duties or any of them.

On January 5, 1924, plaintiffs received a letter from the title company stating that the property was subject to certain building restrictions, and it is conceded that these restrictions were contrary to the terms of sale. A day or two later the plaintiffs made oral demand on Cox for the return of the one thousand dollars, and on February 4, 1924, plaintiffs made a written demand, but the deposit was never returned.

Thereafter this action was commenced against the defendants and judgment obtained. It is from this judgment the appeal is taken.

It is the contention of the appellant that there has been no breach of the bond executed by the surety company because the breach of duty, if any, was the breach of the owner of the property and not of the defendant Cox. An examination of the sales deposit receipt shows that it does not state the name of the owner of the property therein described, nor in any way disclose the principal, if any, for whom defendant Cox might be acting, and there is substantial evidence that plaintiffs did not know the name of the alleged owner until two days after making the deposit. It is well settled that if a person would excuse himself from responsibility on the ground of agency he must disclose his principal at the time of making the contract, unless already known, so as to enable the party with whom