Doggett v. Feitig, Appeal, No. 57

Appeal, No. 57 | Pa. | May 17, 1915

Opinion by

Mr. Chief Justice Bbown,

On March 1, 1906, Henry G. Feitig entered into an agreement with John L. Fry for the purchase of seven properties in the City of Philadelphia. On April 2d of the same year he entered into a second agreement with Fry for the purchase of nine other properties situated in the said city. These agreements provided that Feitig was to have the privilege of selling any or all of the properties at any time before he was required to make final settlement, and was to have the benefit of any increased price at which he might sell. The agreement further provided that, in the event of his making any sale, title was to be made directly by Fry to the purchaser. Stanley Doggett, the appellant, and Feitig are brothers-in-law. Doggett learned from Feitig that he had been successful in real estate operations and requested information from him as to opportunities for speculation which might come to his notice. Without communicating to Doggett the fact that he had entered into contracts for the purchase of the sixteen properties from Fry, Feitig recommended Doggett to purchase them. He was introduced by Feitig to the agent of Fry, with whom negotiations for the purchase of fourteen of the properties were carried on, culminating in two contracts, one dated April 10, 1906, and the other May 23, 1906. By the terms of these contracts Doggett agreed to pay $7,322.09 more for the fourteen properties than Feitig was to pay for them. Doggett paid Fry the purchase-money for the properties, and deeds for the same were duly executed and delivered to him. In the summer of 1911 he discovered that Feitig had an interest in the properties thus purchased, and filed this bill to compel the payment of $3,805.25, the sum which he alleges Feitig received out of the purchase-money paid to Fry. There was no relation of agency, tenancy in common, partnership or other community interest between Doggett and Feitig in Doggett’s purchase, but the court below found that the plaintiff had shown an actionable wrong perpetrated upon him by the appellee. The bill, however, was dismissed for want of proof showing that the complainant was entitled to recover from Feitig in this proceeding the sum claimed. As to the other two defendants, Gertrude Feitig and Eugenie Hamel, the bill was dismissed because there was no evidence that the money in controversy came into their possession or entered into their property.

The bill of the appellant is for the restoration of that part of the purchase-money for the properties which passed into the hands of Feitig, but he makes no offer of restoration. He affirms his contracts for the purchase of the properties by holding on to such of them as he has not yet sold. His charge against Feitig is fraud, and, if he was injured thereby, he cannot repudiate the transaction, so far as it is injurious to himself, and adopt it so far as it is beneficial. He must either allow it to stand or set it aside in toto: Bispham’s Principles of Equity, 355. He makes no offer to return, because he cannot. By reason of his own sale of some of the properties, he cannot reinvest title to them in Feitig. On those which he sold he may have realized a profit, and those which he still retains may be worth more than he paid for them. In affirming his purchases from Fry his only claim against Feitig is for any actual loss he may have sustained. He. proved no loss, and was no more entitled to any relief in equity than he would have a right to recover in an action at law. The whole situation is well summed up by the learned chancellor below in passing upon exceptions and making the final decree.

The trial judge found as a fact, after hearing witnesses, that the appellee had not promised to refund the $3,805.25 to the appelant. This is all that need be said in overruling the third assignment of error. In dismissing the bill no error was committed in imposing the costs upon the complainant who filed it.

Decree affirmed at appellant’s costs.