214 Mass. 5 | Mass. | 1913
This is an action for money had and received. The testimony was not much in conflict. The plaintiff is a real estate agent, who received authority from the owner to procure offers "for a house and lot. He had a series of negotiations with the defendant, whereby the latter learned that the lowest price and terms which the owner would take for the property was $6,000 in cash. Thereupon in November, 1908, he ceased relations with the plaintiff. On January 8, 1909, a deed of the property was made by the owner to one Ross, the brother-in-law of the defendant, and a deed from Ross to the defendant, both instruments having been executed, delivered and offered for record at the same time as successive instruments. The plaintiff testified that having ascertained that the defendant had become the owner of the property he went to see the agent of the former owner, and “learned that Dangel had posed as the broker in the case and had collected the commission for selling the property to Ross.” An agreement between the owner and Ross, dated December 24, 1908, was in evidence, whereby the owner agreed to sell and Ross to purchase the land in question to be conveyed on or before January 14,1909, by sufficient warranty deed conveying clear title, Ross to pay the sum of $6,000 with adjustment for taxes, of which $200 was paid down and $5,800 to be paid upon delivery of the deed. The agreement contained the further stipulation: “That a broker’s commission of two and one-half (2^) per cent is to be paid by the party of the first part to Julius Dangel.” There was also in evidence the check of the defendant to the order of the owner for the amount of the purchase price less the commission of two and one half per cent and the $200 previously paid in cash. Ross, called as a witness by the plaintiff, testified in substance that he was in the tailoring business at 9 Merchants’ Row; that he paid $200 down, and the defendant acted for him as agent; that he did not have $6,000 in real or personal property,' and that the value of his stock of goods was $1,500 or $2,000; that he never told the owner or his agent that he was acting as the agent of the defendant; that the defendant called the property to his attention and procured an attorney to look at the title; that he thought it would be a good location to open a store on the property in question, but it was reported to him that there were restrictions, so that he could not build a store, and that the defendant suggested that rather than
Where a party has obtained money by fraud which in truth belongs to some one else, it may be recovered in an action for money had and received. Earle v. Whiting, 196 Mass. 371. McCabe v. Maguire, 182 Mass. 255. Heard v. Bradford, 4 Mass. 326. Wiley v. Connelly, 179 Mass. 360.
Exceptions sustained.