Bogart v. Crosby & Van Haren
Before: Works
Synopsis
Principal and Agent—Sale of Land—Agent, not Liable to Vendee fob Deposit. — A vendee under a contract for the sale of land who has paid a deposit on the purchase price to the disclosed .agents of the vendor, which they have turned over to their principal, cannot maintain an action against the agents for its recovery on account of the failure of the vendor to perform the contract in time, although the vendor has, prior to the commencement of the action, redelivered the money to the agents.
Id. —Remedies of Vendee and Agent abe against Vendor. —The questions whether the vendee is entitled to the return of the deposit, or whether the agents were entitled to commissions for making the sale, are to be determined in actions brought by them against the vendor. As between themselves, there is no liability either way.
Id. —Verbal Authority of Agent to Sell—Vendor when Estopped to Deny Agency. — The fact that the authority of the agents to sell the land was not in writing does not render them individually liable to the vendee for the deposit. The vendor, having received the deposit, is es-topped, as against the vendee, to dispute or deny the agency.
Works, J. This action was brought by the respondent against the appellants, charging them with having received from the plaintiff, “as the agent of said pl-aintiff, the sum of three hundred dollars, to the use of the said plaintiff.”
The court below did not find on the question of agency, but did find that the defendants “received the money to the use of said plaintiff,” and rendered judgment for the amount and interest.
The appellants contend that the findings that the defendants received the money for plaintiff’s use, and that [196]they thereby became indebted to him, are not sustained by the evidence.
This point is supported by the record, before us.. There is an entire want of any evidence to support either the findings or the allegations of the complaint.
The facts testified to by the respondent himself do not show that these parties were his agents, or that.they received any money from him as such. His own testimony is, in substance, that the defendants were real estate agents; that he agreed to purchase from them a certain piece of property for six thousand dollars, and paid them three hundred dollars in cash, deed to be executed, and balance of purchase-money to be secured and paid thereafter; that he- learned that, these parties were not the owners of the land, by a statement from one of them that one of the owners was in the East, and would be gone for a week or ten days. This was after he had paid them the three hundred' dollars and made the contract, he says; but whether it was before or after is immaterial.
The contract, which- was in the nature of a receipt, was as follows: —
“San Diego, Cal., Sept. 23,1887.
“ Received this day of F. C. Bogart three hundred dollars as deposit on lot A, block 128, Horton’s addition, together with two frame houses on said lot; purchase price, six thousand dollars; terms,, three* thousand five hundred dollars on delivery of deed, two. thousand five hundred dollars in six months from dote, of deed,..the. deferred payment, to bear ten per cent interest. We-guarantee good title or no sale.
“Crosby & Van Harén.” .
The absent owner did not return for a month,, or near-that time, and the plaintiff, in about three weeks,, came, to the conclusion that he would not take the property,, and notified one of" the owners (there being three of them) that he had bought other property “because of
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