Anderson v. Berger

KOFORD, P. J.

Plaintiff obtained judgment for #1,040, which was the amount of a deposit he made with the defendants when signing and leaving with them a proposal to purchase a confectionery store belonging to T. N. Smiley. The complaint was in three counts. The court made findings in favor of plaintiff on the first and third counts. The first was a common count for money had and received, and the third was based upon rescission for alleged fraudulent misrepresentations. The defendants are real estate brokers, with whom Smiley, the owner of the store, listed it for sale. In doing so he made written representations concerning the character and quality of the store. The brokers’ alleged fraud consisted in communicating these representations to plaintiff, thereby inducing him to make the deposit and proposal of purchase. The proposal was signed by plaintiff alone. It read in substance and effect, I hereby deposit with defendants the sum of #1,040 as part payment of the purchase price of Smiley’s confectionery listed by the owner thereof with the defendants as agents for the sale thereof, and I hereby agree to buy said property upon the following terms and conditions. The proposal also said, “As the said agent is negotiating the sale of said personal property only, this offer to purchase . . . shall not be binding on the undersigned, unless the owner thereof will also assign to me the existing lease on said premises,” etc. The court found that on the day the said proposal was executed plaintiff deposited the said sum with the defendants, “which sum said copartnership agreed to hold for plaintiff until the contract of sale of said confectionery should be executed between said plaintiff and the said Smiley; also until a certain lease on the said premises should be assigned to the plaintiff.” After making the deposit plaintiff became dissatisfied and visited Smiley; the owner, in company with one of the defendants. In the conversation between plaintiff and the owner plaintiff expressed his dissatisfaction and charged misrepresentation upon the part of the agents. The owner replied to the effect that the plaintiff might do as he pleased and if he was dissatisfied he should feel at liberty to take back from the agents the deposit made and be freed from

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the proposal. Thereafter plaintiff served notice of rescission upon the defendants and commenced this action against the brokers alone without making Smiley a party defendant. Appellants urge as one point on appeal that the action is against the wrong parties; that it should have been against Smiley instead of these defendants. We find in the record, however, a statement of the trial judge regarding the absence of Smiley as a party defendant. It is, “Smiley is not a necessary party to the action and as the defendants strenuously oppose a reopening of the case for the purpose of bringing in Smiley, I have reached the conclusion that plaintiff’s motion for that purpose should be denied.”