Gauss v. Kirk, 997.
Decision Date | 19 December 1950 |
Docket Number | No. 997.,997. |
Citation | 77 A.2d 323 |
Parties | GAUSS v. KIRK. |
Court | D.C. Court of Appeals |
Landon Gerald Dowdey, Washington, D. C., with whom Emmett Leo Sheehan, Washington, D.C., was on the brief, for appellant.
S. Jay McCathran, Jr., Washington, D. C., for appellee.
Before CAYTON, Chief Judge, and HOOD and CLAGETT, Associate Judges.
Kirk, who was plaintiff below, sued to recover a $500 deposit he had made toward the purchase of real estate. He named as defendants Frank H. Gauss, the agent who held the deposit, and also the three owners. Service could not be had on the three owners because they were residing outside the jurisdiction and the case proceeded to trial against Gauss alone.
In a written memorandum the trial judge made findings of fact and conclusions of law which have proved helpful in our study of the case. He found, on ample evidence, that the buyer had tendered the purchase price but that the sellers had refused said tender and had prematurely attempted to forfeit plaintiff's deposit. He ordered that the defendant Gauss, who as agent was holding the deposit, pay it over to plaintiff. Gauss brings this appeal.
He says — and this is the only argument he makes here — that the suit should have been dismissed because the sellers were not before the court, not having been served with process. He says such sellers were indispensable parties. With this contention we cannot agree. We rule here as we did in an earlier case that the suing purchaser had a right to judgment against the broker who held the deposit. Metzler v. Iacone, D. C.Mun.App., 55 A.2d 81, 82. There we said, concerning facts which are strikingly like those now before us: We pointed out that the vendors never had the money and were not entitled to it, for the contract provided (as this one does) that the entire deposit should be held by the agent until time of settlement. We commented, as the trial judge did in this case, that it was probably the part of wisdom to have joined the sellers as defendants, but we...
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Gauss v. Kirk
...Bowens are indispensable parties to Kirk's action.1 The Municipal Court held they were not. The Municipal Court of Appeals affirmed. 1950, 77 A.2d 323. The authorities are in conflict. The decision in Maloney v. Aschaffenburg, 1918, 143 La. 509, 78 So. 766 (opinion on rehearing), followed i......