Gust v. Wilson
Decision Date | 30 September 1953 |
Docket Number | No. 7372,7372 |
Parties | , 38 A.L.R.2d 1371 GUST v. WILSON et al. |
Court | North Dakota Supreme Court |
Syllabus by the Court.
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:
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 and in awarding ,' 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:
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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