Beaver v. Continental Building & Loan Ass'n

Sale Under Trust Deed—Contract for Renewal—Purchase of Debtor’s Title by Plaintiff—Agency for Defendant—Oral Contract fob Profits on Resale—Statute of Frauds.—Where defendant agreed to a friendly sale under a trust deed, in the interest of the debtor, at suggestion of plaintiff, who was defendant’s agent, to shut off mechanics’ liens on the property, under contract for a new trust deed, under which sale title was taken in the name of a trustee for defendant, though the new trust deed was not executed, and plaintiff secretly acquired the debtor’s title, and made an oral agreement with such trustee for profits on a resale of the property after paying the debt, and obtained purchasers at such profit, but the oral contract with plaintiff was repudiated, and the property was sold by defendant, through another agent, to the same purchasers, such oral contract was invalid under the statute of frauds, and cannot be enforced by plaintiff.

Id.—Nature of Oral Agreement—Agency to Sell Real Estate— Writing Essential.—The agreement relied upon, conceding it to have been made with a person having authority to act for the defendant, must be considered to be one merely of employment of the plaintiff as an agent to sell real estate, which is' made invalid, under subdivision 6 of section 1624 of the Givi] Code, unless expressed in writing.

Id.—Oral Contract to Modify Written Contract not Executed.— If the agreement sued upon be regarded as an oral modification of the written agreement for a new trust deed, it is nevertheless invalid under section 1968 of the Civil Code, which provides that a contract in writing may be altered by a contract in writing or by an executed oral agreement, and not otherwise, the oral modification not having been executed.

Id.—Absence of Good Eaith of Defendant’s Agent—Title Acquired as Trustee for Defendant.—No injustice arises against the plaintiff in applying the statute strictly against him. His conduct toward the defendant in acquiring the title of the debtor under the trust deed secretly, without informing defendant thereof as its agent, was not characterized by the good faith and fair dealing required of an agent toward his principal; and it might be held that plaintiff could not acquire any interest in the property without the consent of the defendant, and that any interest so acquired would be held by him as trustee for defendant’s benefit.