Gosslin v. Martin

107 P. 958 | Or. | 1910

Mr. Justice McBride

delivered the opinion of the court.

Certain facts in this case are so clearly proved that they may be taken as indisputable: (1) That John Denny was the owner of about 600 acres of land in Multnomah County. (2) That his son, H. J. Denny, who resided in Portland, had at least verbal authority from him to sell the property. (3) That H. J. Denny requested defendant to act as agent, to find a purchaser, and to work up a sale. (4) That Martin entered into negotiations with plaintiffs, whereby they agreed to purchase, the land for $12,000; $500 being paid to Martin, as agent, on the signing of the agreement, and the balance to be paid when a good and sufficient conveyance and abstract, showing title in the seller, should be delivered. (5) That a deed, sufficient in form, was deposited in the bank, together with an abstract which did not show a clear title, but which showed a number of unpaid but valid judgments against the property. (6) That, being unable to arrange these judgments, H. J. Denny, acting for John Denny, recalled the deed. (7) That later, by another arrangement and through another party, plaintiffs purchased the property at an advanced price, but only after they had attempted to compel a specific performance of the original contract and had been defeated. Nor was the $500 paid to defendant, considered or applied on the new contract. (8) That before they commenced this action they demanded of defendant the $500 they had paid, which he failed to return on such demand. (9) That defendant never paid the $500, received by him, to John Denny, but kept it on the theory that it was due him for commission.

The money which defendant received belonged to plaintiffs.'' ..It was paid to him on the theory that he was the agent of-John Denny, and plaintiffs were entitled to the return of it-when the consideration on which it was paid absolutely failed. Where an agent has collected money for his principal under such circumstances and paid it over to the principal, an action will not lie against him to recover it; but where, as in this case, he still has the money in his possession, such action will lie. It is probable that defendant has a good cause of action against Denny to recover his commissions, but to allow him to retain the money paid him by plaintiffs would be unconscientious.

There is no evidence to sustain the finding of the court below, and the judgment, therefore, is reversed, and a new trial ordered. Reversed.