Cremer v. Wimmer

• Decision Date: 24 May 1889
• Citation: 40 Minn. 511,42 N.W. 467
• Parties: CREMER v WIMMER ET AL.
• Court: Minnesota Supreme Court

40 Minn. 511

42 N.W. 467

CREMERvWIMMER ET AL.

Supreme Court of Minnesota.

May 24, 1889.

(Syllabus by the Court.)

Where a contract has been taken by an agent in his own name, although for the benefit of his principal, he is “a trustee of an express trust,” within the meaning of Gen. St. 1878, c. 66, § 28, and may sue in his own name.

Appeal from municipal court of St. Paul; CORY, Judge.

Action by M. A. Cremer against Joseph Wimmer and Annie Wimmer. Action dismissed on the pleadings, and plaintiff appeals.

H. C. McCartey, for appellant.

Gebhardt Willrich, for respondents.

MITCHELL, J.

Action for damages for the non-performance of a contract for the sale of land. Taking the complaint and reply together, and waiving a discrepancy in dates not here important, they show the following facts: Defendant Joseph Wimmer employed plaintiff as his agent to sell the land in question, agreeing to pay him as commission, in case he found a purchaser, all that was obtained by plaintiff over $900. Plaintiff found a purchaser, one Engel, at $1,000, and so reported to defendants, who thereupon executed to him a contract, by which they sold and agreed to convey to plaintiff personally for $900. Assuming that in taking this contract plaintiff was Engel's agent, and that although in the name of the...