Depavo v. Rizzo

KERRIGAN, J.

This action, in form one for money had and received, was brought to recover the sum of five hundred dollars paid as a deposit on a contract for the purchase of a parcel of real estate. Judgment went in favor of the plaintiffs and against defendants N. Rizzo and Elizabeth Piepenberg jointly for the amount sued for. This is an appeal from the judgment by N. Rizzo.

In support of his appeal the appellant contends that the evidence shows that he was the agent of the owner of the real

[201]

property involved; that he performed his contract with such owner; that the owner was not in default in the performance of the contract, and that even if she were, the plaintiffs cannot recover from appellant, the agent, money paid as a deposit for account of the principal, but must look to the principal for it.

The facts of the case are substantially these: The plaintiffs, desiring to rent a store for the purpose of carrying on their business as bakers, applied to the defendant Rizzo, a real estate broker, requesting that he endeavor to find for them a suitable place, which Rizzo undertook to do. None being found, Rizzo suggested to them that perhaps he could find a lot which they could buy and erect thereon a building for themselves. The plaintiffs assented to this course, and soon thereafter Rizzo notified them that he had found a suitable location. Plaintiffs examined it, and expressed their willingness to pay for it the sum of ten thousand one hundred dollars. The owner of this property was the defendant, Elizabeth Piepenberg, who appears in the transaction from beginning to end, by her agent or attorney in fact, the defendant L. R. Weil. On April 17, 1913, the plaintiffs met Rizzo and Weil in the former’s office, and entered into a written contract for the purchase of the property in question at the price of ten thousand one hundred dollars, of which five hundred was to be paid down, and the balance upon certain terms specified therein. Ten days were provided in the contract for the purchasers to examine title and state their objections thereto, the vendor to have thirty days thereafter to remedy any defects.

On the same day, but just prior to the execution of the aforesaid contract, another agreement in writing had been entered into between Rizzo and Elizabeth Piepenberg, through her said agent L. R. Weil, by which said Piepenberg agreed to sell and convey to the plaintiffs the same property but for the sum of nine thousand six hundred and sixty dollars, of which one hundred dollars was to be in cash, the remaining terms being for all practical purposes similar to the terms of the contract just described. There is nothing, however, to show that the plaintiffs had any knowledge of the existence of this second mentioned agreement. For the purpose of making the cash payment required on their contract the plaintiffs handed to Rizzo at the time of its execution the sum of