Triphagen v. Labbe

• Decision Date: 06 March 1952
• Docket Number: No. 14,14
• Citation: 332 Mich. 583,52 N.W.2d 226
• Parties: TRIPHAGEN v. LABBE et al.
• Court: Michigan Supreme Court

Page 226

52 N.W.2d 226

332 Mich. 583

TRIPHAGEN v. LABBE et al.

No. 14.

Supreme Court of Michigan.

March 6, 1952.

Foster, Cummins, Snyder, Cameron & Foster, Lansing, for appellants.

Kelley & Seelye, Lansing, for appellee.

Before the Entire Bench, except BOYLES, J.

REID, Justice.

Plaintiff brought proceedings before a circuit court commissioner to forfeit a land contract for nonpayment of purchase moneys. The vendees in the land contract defended on the ground that the required payments of purchase money had all been paid in full. The circuit court commissioner found for defendants and dismissed the proceedings. On appeal, the circuit judge found for plaintiff and rendered judgment for her including a finding for $14,321.66 as the amount unpaid and due.

Plaintiff employed a real estate dealer, Lester Mack, to find a buyer for her house and two lots on Genesee drive, in Lansing. Plaintiff demanded $26,500 and Mack produced defendants as prospective buyers and defendants offered $26,000 and refused to pay more. Unknown to plaintiff, Mack agreed in writing to refund to defendants $500 out of his dealer's commission. An offer to purchase dated August 21, 1946, was signed by defendants and the acceptance was signed by plaintiff, the stated price being $26,500. Defendant Dr. Labbe gave to Mack his, the defendant's, check for $1,000 payable to order of plaintiff and Mack gave the check to plaintiff. Plaintiff required more money to bind the bargain, and Dr. Labbe signed another check for $1,000 which latter check is dated August 21, 1946, payable to L. H. Mack, which check or the proceeds thereof was delivered by Mack to plaintiff. Plaintiff admits that she received $2,000 from Dr. Labbe before the execution of the land contract dated September 14, 1946 (acknowledged September 19, 1946), in which contract plaintiff is vendor and the defendants are vendees, and in which the total consideration is stated at $26,500 and the house and two lots in question are described.

After the signing of the accepted offer to purchase dated August 21, 1946, and before the execution of the land contract acknowledged September 19, 1946, defendants had sold through Mack as their agent, their house in which they then lived and received from the purchaser of their house, a check as down payment for $8,868, which they turned over to Mack; Mack gave back to defendants $868 in cash and was to pay $8,000 to plaintiff on the purchase price of her house and two lots in question; but Mack did not turn that amount, $8,000, over to plaintiff, neither did plaintiff know that Mack had received that amount, $8,000. However, the land contract which was acknowledged September 19, 1946, recited, 'Ten Thousand Five Hundred ($10,500.00) Dollars on the execution and delivery of this contract, receipt of which is hereby acknowledged by first party and the balance of Sixteen thousand ($16,000.00) Dollars together with interest on the whole sum, at the rate of four (4%) per cent per annum, to be computed from date of this contract to be paid on or before January 14, 1947.'

After September 19, 1946, the date of the acknowledgment of the land contract, defendants gave Mack for plaintiff: October 1, 1946, $6,125; October 7, 1946, $868; October 11, 1946, $2,000; and November 3, 1946, $7,007, a total of $16,000.

After September 19, 1946, Mack paid plaintiff for defendants: October 2, 1946, $3,500; October 8, 1946, $1,000; October 14, 1946, $2,000; October 21, 1946, $2,000; January 14, 1947, $3.67; January 18, 1947, $1,000; February 15, 1947, $2,000; and November 24, 1948, $3.28, a total of $11,506.95.

If Mack was the agent of plaintiff in receiving the moneys that he did receive from defendants to apply on the purchase price, then plaintiff had been paid in full, and judgment should be for defendants.

A real estate broker employed to make a sale of real estate has no authority to collect payments for his client, unless specially authorized so to do. See 8 Am. Jur., pages 1016-1020 and authorities there cited.

Plaintiff testified and defendant Dr. Labbe admits, that plaintiff never told defendants that Mack was her agent to collect payments.

Dr. Labbe himself began and continued of his own motion the making of payments to Mack for plaintiff and plaintiff had no right to refuse to receive the money from Mack nor was there anything connected with her receipt of moneys from Mack which would cause...