Kurzawski v. Schneider

Opinion by

We are of opinion that neither the statement filed in-this case nor the testimony presented at the trial discloses any ground for a recovery against the defendant. He entered into no contract with the plaintiff, and violated no duty which he owed him. An agent who receives money paid on account of *504a contract for the purchase of real estate made with his principal cannot be held liable in an action by the purchaser to recover the money back on proof of facts which would entitle the purchaser to rescind the contract. The contract in this case was made between the plaintiff and Mrs. Modzynski for the purchase by him of her land in Germany. They agreed upon the terms of purchase, and went together to the defendant to have the contract reduced to writing. It was then arranged that the plaintiff should pay the purchase money in instalments to the defendant for the vendor, and that the defendant was to see to the proper transfer of the title when the whole of the price should have been paid. In procuring the transfer of the title he seems to have represented both parties, but in receiving the purchase money he was acting for the vendor only, and he offered to return it if she would agree. As ■ this view of the case is conclusive of the plaintiff’s right to recover, it is unnecessary to consider in detail the other assignments of error further than to say that a peremptory instruction for the plaintiff should not have been given, as the question whether there had been any breach of contract and whether the offer to rescind was made in time were fairly raised by the testimony.

As there is doubt whether the title has become vested in the plaintiff, and as to the means by which a reconveyance can be made should it become necessary, it is evident that another form of proceeding is better adapted to secure a satisfactory adjustment of the rights of the parties.

' The judgment is reversed.