Bauman v. Wuest

JAMES, J.

Plaintiff’s suit was to enforce transfer to him of a certain lease of real property covering a term of years, in which lease defendant Wuest was named as the lessee. It was alleged that a transfer had been made without consideration by Wuest to defendant Morganstern. An answer was filed and the case came on for trial, judgment being entered in favor of the defendants, from which plaintiff appealed.

Plaintiff alleged in his complaint that he employed Wuest to secure a lease of certain real property for him, with the understanding that if the lease could not be procured to be made directly to plaintiff, Wuest should, if possible, secure it in his own name and then transfer it to plaintiff. For this service it is alleged plaintiff agreed to pay Wuest the sum of one thousand dollars. It was alleged that Wuest secured the lease to be made to himself, and denied any interest of this plaintiff and assigned the lease to Morganstern. Plaintiff alleged that he had tendered payment of the one thousand dollars agreed upon as compensation for Wuest’s services, and had demanded that the defendants make assignment of the lease to him. In the answer of the defendants, the making of any agreement constituting Wuest as the agent of plaintiff for the purposes alleged in the complaint was denied, and it was further alleged by way of defense that any agreement made in that behalf was void as not being expressed in writing. At the outset of the trial, plaintiff proceeded to offer proof of the making of the agreement with Wuest by way of parol, and was met with the objection that such testimony was incompetent because of the provisions of the statute of frauds. Thereupon plaintiff made a complete offer to show the agreement, stating, however, that it rested altogether in parol, and that there was no writing evidencing the same. The whole case was submitted upon that offer, defendants objecting, as noted, and the objection being sustained by the court. The judgment appealed from was thereupon entered. The appellant contends that an agency of the kind alleged in the complaint may be established by parol, but does

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not contend that by the oral authorization made, Wuest, as agent, would be empowered to execute on the plaintiff’s behalf a binding contract of lease, as the term was for a period exceeding one year. (Civ. Code, sec. 1624, subd. 5.) He seeks, however, to have his case brought within a classification of resulting trusts which equity by construction will enforce, and not permit the trustee to interpose the statute of frauds as a defense. He refers to the cases of