Pancoast v. Dinsmore

• Decision Date: 28 June 1909
• Citation: 75 A. 43,105 Me. 471
• Parties: PANCOAST v. DINSMORE.
• Court: Maine Supreme Court

75 A. 43

105 Me. 471

PANCOAST

v. DINSMORE.

Supreme Judicial Court of Maine.

June 28, 1909.

(Official.)

Exceptions from Supreme Judicial Court, Piscataquis County.

Action by Julia B. Pancoast against David E. Dinsmore. There was a directed verdict for plaintiff, and defendant excepts. Exceptions overruled.

Action of assumpsit for money had and received with specifications of what the plaintiff expected to show and prove under the money had and received count. Plea, the general issue. During the trial, the presiding justice excluded certain evidence offered by the defendant, and at the conclusion of the testimony ordered a verdict for the plaintiff. To these rulings the defendant excepted.

The case is stated in the opinion.

Argued before WHITEHOUSE, SAVAGE, PEABODY, CORNISH, KING, and BIRD, JJ.

J. B. & F. C. Peaks, for plaintiff.

C. W. Hayes, for defendant.

SAVAGE, J. This case comes up on defendant's exceptions to the exclusion of evidence and to the ordering of a verdict for the plaintiff. The evidence in the case shows that the plaintiff negotiated with the defendant for the purchase of a farm. The negotiations ended in a written contract signed by the defendant as agent for one Hilton. By the terms of the contract Hilton was to execute and deliver to the plaintiff, at a time and place certain, a warranty deed of the farm, with the usual covenants, and the plaintiff was to pay $400 down, that is, at the execution of the contract, and to pay or secure the balance of the purchase price at the delivery of the deed. The plaintiff paid the $400 to the defendant, and he still holds the money, and it is not claimed by Hilton. At the date of the contract Hilton did not own the farm, nor did he own it at the time fixed for the delivery of the deed, nor has he owned it at any time since, and he has never executed or tendered any deed of it. He might have put himself in a position so that he could perform the contract on his part, by seasonably procuring title in his own name, but he did not. After the time specified for the delivery of the deed had passed, and after demand for the repayment of the money, the plaintiff brought this suit to recover of the defendant the $400, advanced towards the payment for the farm.

Under these circumstances, it is not questioned, and cannot be, that the defendant, though only an agent, is liable in this action for the money received by him, unless some of the defenses tendered by him, and to be referred to later, are valid and effective. The rule is that where money has been paid to an agent for his principal, under such circumstances that it may be recovered back from the latter, the agent is liable as a principal so long as he stands in his original position, and until there has been a change of circumstances by his having paid over the money to his principal, or done something equivalent to it. 1 Am. & Eng. Ency. of Law, p. 1129. In this case, Hilton, the principal, had utterly failed to perform his contract He could neither enforce payment of the unpaid part of the purchase price, nor rightfully retain that part which had been paid. Richards v. Allen, 17 Me. 290; Jellison v. Jordan, 68 Me. 373. Therefore, so far as Hie case has yet been stated, the plaintiff has a clear right to recover in this action.

But the defendant, not controverting the facts thus far outlined, claimed and offered evidence to show that Hilton himself was acting as the authorized agent of the real owner of the farm to sell it, and that the plaintiff's husband knew this fact before the time fixed for the delivery of the deed, and also knew who was the true owner. But it is not claimed that either the plaintiff or her husband knew these facts at the time the contract was made, except from the clause in the contract describing the farm as "belonging to the estate of William S. Perkins."

The defendant further offered to show that the plaintiff's husband, acting as her agent (and we assume with authority from her), after the time specified in the contract for the delivery of the deed, and waiving strict performance as to time, agreed, first with the authorized attorney of the owner, and later with another agent of the owner, upon a later time for the delivery of a deed; that a deed from the owner...