Bird v. Thompson

THE COURT.

Plaintiff entered into an agreement with the defendants for the exchange of their respective properties, by the terms of which plaintiff agreed to assume a “present” mortgage of $10,000 on defendants’ property. Following the agreement, escrow instructions were signed, which provided that defendants should deliver a clear title but that they should be entitled to the “present” crop. It developed that there was no mortgage on defendants’ property, this fact being discovered after the completion of the transaction. It was stipulated that defendants received not more than $9,217.10 for the crop. Judgment was rendered for defendants.

Plaintiff contends that her complaint is for an accounting, and not for damages; but irrespective of the type of action, the facts show no grounds for relief. Assuming that the term of the agreement referring to a “present” mortgage was a false representation, there is no evidence at all that it was relied upon by plaintiff to her detriment. She was willing to take the property with the $10,000 mortgage, and she lost nothing by giving up a crop worth less than that sum in consideration of the property being relieved from the encumbrance. The suggestion that defendants hold money of plaintiff as constructive trustees is unsupported by any authority in point, and on principle we see no reason for raising a constructive trust where no injury has been suffered.

The trial court properly decided the issues before it. The judgment is affirmed.