Bachrach v. Fleming
| Decision Date | 14 February 1921 |
| Docket Number | 188 |
| Parties | Bachrach v. Fleming, Appellant |
| Court | Pennsylvania Supreme Court |
Argued January 17, 1921
Appeal, No. 188, Jan. T., 1921, by defendant, from decree of C.P. No. 2, Phila. Co., March T., 1920, No. 2763, on bill in equity, in case of Walter K. Bachrach v. Ferdinand D. Fleming and Wm. T. Moffly et al., executors of estate of John W Moffly, deceased. Affirmed.
Bill in equity to compel conveyance of rea estate. Before STERN, J.
The opinion of the Supreme Court states the facts.
The court entered a decree for conveyance of the real estate in question. Defendant, Ferdinand D. Fleming, appealed.
Error assigned, among others, was decree, quoting it.
The decree is affirmed at appellant's cost.
Paul Reilly, for appellant. -- A trust ex maleficio, such as appellee claims, must be sustained by proof which is clear precise and indubitable: Elkinton v. White, 5 Pa. Dist. R. 199; Martin v. Baird, 175 Pa. 540; Grove v. Kase, 195 Pa. 325; McCloskey v. McCloskey, 205 Pa. 491; Jourdan v. Andrews, 258 Pa. 347.
J. J. Rothschild, of Fox & Rothschild, with him Stanley Folz, for appellee. -- An agent may not, during the course of his employment, negotiate to acquire for himself property which he has been employed to purchase for his principal: Powers v. Black, 159 Pa. 153; Bergner v. Bergner, 219 Pa. 113.
Before FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.
Plaintiff Bachrach, who conducts photographic studios in Baltimore and Philadelphia, was desirous of changing the location of his business in the latter city; his manager there, by his direction, communicated by telephone with the office of defendant Fleming, appellant, who is a real estate agent and, as a result, Dunn, who was employed by Fleming as sales agent, called upon plaintiff and arranged that Fleming should endeavor to procure for him a satisfactory property. After this arrangement was made, plaintiff and Dunn looked at the property 1718 Chestnut street, the subject of this litigation, and the latter gave his opinion that it could be purchased for a price in the neighborhood of $100,000; plaintiff instructed him to ascertain the lowest price at which it could be acquired. Some days after this interview, Dunn visited plaintiff in Baltimore and informed him he thought the property could be purchased for $95,000; whereupon Bachrach gave him a letter addressed to Fleming, authorizing the latter to make an offer of $90,000, and a few days later received a letter written on Fleming's stationery, signed with his name "by A. J. Dunn," in which it was stated that, immediately upon his return to Philadelphia, It appears, however, that immediately after receipt of the letter authorizing the offer of $90,000, Fleming entered into negotiations, on his own account, for the purchase of the property, and executed an agreement with its owners to buy it for $85,000. When negotiations for his purchase of the property had been completed, Fleming sent Dunn to Baltimore, to try to sell the property to the plaintiff, at an advance of $10,000 over the price he had contracted to pay. On the witness stand, Fleming made the categorical admission, "I concealed the price," meaning the price he was paying. His agent, on this visit to Baltimore, persuaded Bachrach to pay the price, $95,000, which Fleming had instructed him to obtain, and when Bachrach's attorney was summoned to prepare the contract of sale, Dunn stated to him that ...
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