Gust v. Wilson

Decision Date30 September 1953
Docket NumberNo. 7372,7372
Parties, 38 A.L.R.2d 1371 GUST v. WILSON et al.
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. When the appellant on an appeal from a judgment in a case tried to the court under Sec. 28-2732 NDRC 1943, demands a trial de novo the failure of the trial court to make findings of fact does not constitute grounds for the granting of a new trial or for reversing the


2. An action for money had and received is the proper remedy for the recovery of money to which the plaintiff is entitled and which the defendant is not entitled in good conscience to retain.

3. A real estate broker who has received for his principal a deposit to be applied on the purchase price of real estate if his principal, the vendor, has merchantable title and which he has retained in his possession without a change in his position, is liable for the refund thereof to the purchaser if the vendor did not at the time of the contract have merchantable title and has never been able to perform.

4. A real estate broker, acting as agent for the vendor of land and receiving a deposit from the purchaser to be held as security for the performance of the contract and applied on the purchase price on such performance, holds such deposit as a stakeholder and after failure of the vendor to perform becomes a trustee for purchaser.

5. A real estate agent who receives for his principal a deposit to be applied on the purchase price of land under certain conditions has no more right to that deposit than his principal. If the principal has no right to the fund, the agent has no right to apply it to the use of either the principal or himself.

Burnett, Bergesen, Conmy & Whittlesey, Fargo, for appellant.

Roy K. Redetzke, Fargo, for respondent.


Plaintiff brings this action to recover $500 from the defendants. In his complaint he alleges that the defendant, More, was a real estate broker employed by the defendant, Sam A. Wilson to sell certain real estate; that a contract was entered into between the plaintiff and Wilson for the purchase of said real estate; that plaintiff deposited with More $500 as part of the purchase money; that Wilson was to furnish abstracts of title showing merchantable title to said property in Wilson; that upon examination of the abstracts certain encumbrances and defects in the title were found. Wilson failed to remedy such defects; that plaintiff was ready and willing to go on with the agreement but on the failure of Wilson to cure the defects in the title he cancelled the contract and demanded the return of the $500 which was still in the possession of More and asks for judgment against both defendants.

Both defendants answer. More admits the contract and claims he acted only as agent for Wilson; admits the receipt of the $500; claims he credited Wilson therewith and applied it on his commission due from Wilson for making the sale to the plaintiff; admits that Wilson was to furnish abstracts showing merchantable title but claims he has no knowledge of the dispute between the plaintiff and Wilson; that plaintiff's cause of action, if any, is against Wilson.

Wilson makes a general denial but admits the contract with plaintiff for the purchase of certain lands and the deposit with More by the plaintiff of the $500 Wilson claims he furnished the abstracts showing clear title except for some encumbrances which he agreed to take care of out of the purchase price and claims to have been willing and able to perform under the terms of his contract but that plaintiff said he was unable to sell a certain North Dakota farm and requested that the deposit be returned to him. Wilson claims further that he so informed defendant More who has failed to repay the $500 but diverted the same to his own use and 'without the scope of his authority.'

When the case came up for trial counsel for all parties waived a jury and agreed in open court to stipulate the facts and afterwards a written stipulation was filed from which 'this law suit' was 'to be decided.'

From the stipulations it appears that A. Y. More was a real estate agent employed by the defendant, Wilson, to find a purchaser for certain real estate. He induced the plaintiff to become such purchaser. On Oct. 21, 1948 the plaintiff signed an offer to defendant More to purchase said premises on certain terms which offer was accepted by defendant Wilson. Plaintiff paid to defendant More $500 which according to the contract, Exhibit A, was 'to be applied as a part of the purchase price.' Regarding this payment the stipulation of counsel provides:

'That the said plaintiff, as a security, as well as for the performance of said agreement on his part and to secure the performance thereof on the part of the said defendant, then and there deposited in the hands of the defendant, A. Y. More, for said defendant, Sam A. Wilson, the sum of Five Hundred Dollars ($500.00) cash, as part of said purchase money, in accordance with the terms and conditions of said written agreement and identified as plaintiff's Exhibit 'A' herein.'

The $500 deposit still remains in the hands of defendant More. The contract stipulated that Wilson was to furnish an abstract of the title to the premises described in the contract showing merchantable title free and clear of encumbrances, including taxes. The contract provided the transaction was to be completed on or before Nov. 10, 1948. The defendant, Wilson, furnished such abstracts but upon examination by plaintiff's attorney defects in the title were found of which the defendants were informed. Defendant Wilson made no effort to perfect the title. Plaintiff was ready to make payments according to the contract if defendant would remedy the defects enumerated. Defendant More notified defendant Wilson that unless title was cleared so the deal could be closed he, More, would bring suit for his commission. Finally, on Feb. 22, 1949, plaintiff cancelled the contract on account of defendant's failure to furnish title and demanded return of the $500 payment. Defendant Wilson advised defendant More to return the $500 to the plaintiff. More refused, claiming to have applied that $500 on his commission due from Wilson for his services as Wilson's agent in securing plaintiff as purchaser of the premises involved.

Thereafter this action was commenced against both Wilson and More for the return of the $500 as money had and received. The case was tried to the court on the stipulation of facts. The court found for the plaintiff and ordered judgment against both defendants. Defendant More appeals from the judgment assigning as errors that the court erred in determining 'the defendant A. Y. More was liable in any amount to the plaintiff in this action' and in awarding 'judgment in favor of the plaintiff and against the defendant A. Y. More,' and in refusing to award a 'judgment dismissing the action on its merits as to defendant A. Y. More.' Further, the defendant, More, assigns as error that the court erred in not rendering and entering findings of fact and conclusions of law.

There exist in this State two types of appeal for review in the Supreme Court of judgments of a district court or a county court with increased jurisdiction. One type of appeal provides for the review of the rulings of the trial court upon assignments or specifications of error; and the other type provides for what is known as a trial de novo in the Supreme Court. The first type of appeal was in effect under the Laws of the Territory of Dakota and came into effect in the State upon the establishment of the government of the State of North Dakota. The second type of appeal came into being in 1893. See Laws 1893, Ch. 82; Christianson v. Farmers' Warehouse Ass'n, 5 N.D. 438, 67 N.W. 300, 32 L.R.A. 730. Said Chapter 82 was amended in 1897, Laws 1897, Ch. 5, and was embodied in subsequent codifications and revisions and is embodied without material change in Sec. 28-2732 NDRC 1943:

'On appeal in any action tried by the court, without a jury, whether triable to a jury or not, if it appears to the supreme court that any material evidence was excluded, the supreme court may issue a mandate to the trial court to take such evidence without delay and to certify and return it to the supreme court, and all proceedings in the supreme court shall be stayed pending the return of such evidence. A party desiring to appeal from a judgment in any such action shall cause a statement of the case to be settled within the time and in the manner prescribed by chapter 18 of this title, and shall specify therein the questions of fact that he desires the supreme court to review, and all questions of fact not so specified shall be deemed on appeal to have been properly decided by the trial court. Only such evidence as relates to the questions of fact to be reviewed shall be embodied in this statement. If the appellant shall specify in the statement that he desires to review the entire case, all the evidence and proceedings shall be embodied in the statement. The supreme court shall try anew the questions of fact specified in the statement or in the entire case, if the appellant demands a retrial of the entire case, and shall finally dispose of the same whenever justice can be done without a new trial, and shall either affirm or modify the judgment or direct a new judgment to be entered in the district court. However, the supreme court, if it deems such course necessary to the accomplishment of justice, may order a new trial of the action. In actions tried under the provisions of this section, failure of the court to make findings upon all the issues in the case shall not constitute a ground for granting a new trial or reversing the judgment.'

A party to an action aggrieved by a judgment rendered against him in an action tried to the court without a jury is not required to take an appeal under the statute providing for a trial anew in the Supreme...

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13 cases
  • Rhodes v. Tomlin
    • United States
    • Alabama Supreme Court
    • January 23, 1958
    ...Cal. 632, 221 P. 356; also Hurricane Milling Co. v. Steel & Payne Co., 84 W.Va. 376, 99 S.E. 490, 6 A.L.R. 641; Gust v. Wilson, 79 N.D. 865, 60 N.W.2d 202, 38 A.L.R.2d 1371. It is finally urged by appellants that the court erred in holding Mrs. Rhodes liable for the refund of the money to t......
  • Mader v. James
    • United States
    • Wyoming Supreme Court
    • February 12, 1976
    ...135; Andersen v. Burns, 1974, 96 Idaho 336, 528 P.2d 680; Rhodes v. Tomlin, 1958, 267 Ala. 491, 102 So.2d 904; Gust v. Wilson, 1953, 79 N.D. 865, 60 N.W.2d 202, 38 A.L.R.2d 1371. The fact that the agent credits the principal with the amount received does not release the agent from his oblig......
  • Spielman v. Weber, 8029
    • United States
    • North Dakota Supreme Court
    • November 27, 1962
    ...court's findings. In doing this, the findings of the trial court will be considered and will be given appreciable weight. Gust v. Wilson, 79 N.D. 865, 60 N.W.2d 202; 38 A.L.R.2d 1371; Umland v. Frendberg (N.D.), 63 N.W.2d 295; Strobel v. Strobel (N.D.), 102 N.W.2d 4; Dockter v. Crawford (N.......
  • Watson v. Kresse
    • United States
    • North Dakota Supreme Court
    • October 29, 1964
    ...appeal demanding trial de novo, tries the case anew, giving appreciable weight to the findings of the trial court. Gust v. Wilson, 79 N.D. 865, 60 N.W.2d 202, 38 A.L.R.2d 1371; Sec. 28-27-32, N.D.C.C. While the appellate court, in reviewing such case tried without a jury, will give apprecia......
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