Rash v. Jenne, 37 P. 538

Rash v. Jenne

37 P. 538 | Or. | 1894

Opinion by

Mr. Chief Justice Bean.

The defendant does not deny his liability to the plaintiff on his covenant of warranty, but contends that the measure of damages is such a proportion of the purchase money received by him as the value of the property purchased bore to the value of the whole tract at the time of her purchase. This contention is based upon the theory that prior to the sale by Stearns to1 the plaintiff he had pur chased the property from the defendant, and, as a consequence, in making 'the sale was acting for himself, and not as agent of the defendant, and therefore the deed to the *173trust company was made in trust for him, and not plaintiff. But this position is contrary to the findings of fact, as we understand them, as well as the answer, in which it is admitted that prior to the conveyance by the defendant to the trust company Stearns was his agent for the sale of the property, and that such agency did not cease until the conveyance was made. As the sale to plaintiff was prior to that time, and the deed to the trust company was made for the purpose, with the knowledge, and under the circumstances hereinbefore stated, it seems manifest, if we are to be bound by the findings of fact and pleadings, that the sale to the plaintiff was made by the defendant through his agent, and the deed to the trust company was in trust for her as a means of consummating the contract. It is true there is a finding that on January twenty-third, Stearns entered into a parol contract with the defendant to purchase blocks B, C, D, and E, and that he deposited with the defendant one hundred dollars as a part of the purchase price of said blocks, but it does not appear that this contract was ever completed or carried out. Indeed, the other findings completely negative such a conclusion. No such defense or claim is made in the answer, and on the date of this alleged contract, Stearns, as agent, sold two of the blocks to the plaintiff, and defendant did not know, at the time he made the deed to the trust company, to whom the land had been sold but made the deed for the benefit of persons to whom Stearns, as his agent, had sold the property. From the pleadings and findings of fact we are bound to conclude that the sale to plaintiff was made by Stearns as the agent of the defendant, and the conveyance to the trust company was adopted as a convenient method of transferring the title to her. This being so, the conclusion is inevitable that the covenant of warranty in such deed inured to the benefit of the plaintiff to the same extent as if the conveyance had been made directly *174to her, and for the breach thereof the measure of damages is the consideration paid, with interest, although by an arrangement, of which plaintiff had no knowledge, between defendant and the ageDt who made the sale, a large portion of, or even all, the money was retained by the agent as compensation for making the sale of the property in question and other property. If the plaintiff bought the property of the defendant, either directly or through an agent, and his covenant of warranty was for her benefit, she is entitled to recover as damages for a breach thereof the consideration paid by her, and interest, whether any of the money reached the hands of the principal or not: Bloom v. Wolfe, 50 Iowa, 286. The judgment will therefore be reversed and the cause remanded with directions to enter judgment in favor of plaintiff on the findings of fact for the amount claimed.

Reversed.