Quinn v. Phipps ( 1927 )

The statutes of the State of Florida contain the following:

"No estate or interest" in lands * * * "shall be created" "in any other manner than" by deed or will "or by the act and operation of law." Sec. 3787, Revised General Statutes, 1920. "A trust in lands may arise or result by the implication or construction of law, or be transferred or extinguished by the act and operation of law." Sec. 3791, Revised General Statutes 1920.

"A constructive trust is one that arises when a person, clothed with some fiduciary character, by fraud or otherwise gains some advantage to himself. Courts construe this to be an advantage for the cestui que trust, or a constructive trust." Sec. 27, Perry on Trusts (6th ed.) 18.

There are at least three classes of constructive trusts, which are not based upon intention but are imposed in order to prevent unjust enrichment:

(1) If A's money is used by B without A's consent in purchasing property in B's name, B holds the property upon a constructive trust for A. This is the familiar case in which, where one person acquires property by the wrongful use of the property of another, the latter is allowed to trace his property into its product, to follow the res. It is obvious that this class of trusts is not based in any way on intention, but is imposed by law in order to prevent one person from profiting by the wrongful use of the property of another. Even in States in which purchase-money resulting trusts have been abolished by statute, this class of constructive trusts is retained.

(2) If B stands in a fiduciary relationship to A and in violation of his duty as fiduciary acquires property, he holds the property upon a constructive trust for A. In this class of cases it is immaterial that B uses his own money in acquiring the property. This class of trusts is not based on intention, but is imposed by law in order to prevent a fiduciary from profiting by a violation of his duty of loyalty to his principal, even though the profit may not be at the principal's expense.

(3) If A owns property which is about to be sold for non-payment of taxes, or on a foreclosure of a mortgage, or on execution of a judgment, and is induced to refrain from preventing the sale by an oral promise made by B to buy in the property on the sale and to reconvey it to A, and B thereupon buys in the property, B becomes constructive trustee for A, although B buys the property with his own money. In this class of cases a trust is raised not for the purpose of carrying out A's intention but for the purpose of putting the parties instatu quo, in order to prevent B from profiting at A's expense.

Not infrequently it happens that the circumstances are such that if A fails to prove facts necessary to raise a purchase-money resulting trust, or if by statute such resulting trusts are abolished, he may, nevertheless, prove facts sufficient to raise a constructive trust of one or another of these three classes. Vol. 40 Harvard Law Review, 674 Note.

An equitable estate or interest in lands in the nature of a constructive trust may be decreed as arising by operation of law where an agency or other fiduciary relation existed between the parties with reference to the lands, and by a breach of duty in such relation one of the parties acquires title to the lands or an interest therein contrary to the substantial legal or equitable rights of the other party (Boswell v. Cunningham,32 Fla. 277, 13 So.2d Rep. 354; Johnson v. Hayward,74 Neb. 157, 103 N.W. Rep. 1058, 5 L. R. A. (N. S.) 112, and Notes; Trice v. Comstock, 121 Fed. Rep. 620, 61 L. R. A. 176; Rose v. Hayden, 35 Kan. 106, 10 Pac. Rep. 554; Davis v. Hamlin,108 Ill. 39; Allen v. Jackson, 122 Ill. 567, 13 N.E. Rep. 840; Rogers v. Genung, 76 N.J. Eq. 306, 74 Atl. Rep. 473, reversing Rogers v. Genung, 75 N.J. Eq. 13, 71 Atl. Rep. 230; Harrop v. Cole, 85 N.J. Eq. 32, 95 Atl. Rep. 378; Harrop v. Cole, 86 N.J. Eq. 250, 98 Atl. Rep. 1085); or where one has an interest in lands and agrees with another that the latter shall acquire the land for the benefit of the first. Patrick v. Kirkland, 53 Fla. 768, 42 So.2d Rep. 969; Thomas v. Goodbread,78 Fla. 278, 82 So.2d Rep. 835; 26 R. C. L. 1244, Par. 91; or where a party furnishes a consideration or agrees to pay a consideration to be used in acquiring lands for him by another. Ward v. Spivy, 18 Fla. 847; Caruthers v. Williams, 21 Fla. 485; Avery v. Stewart, 136 N.C. 426, 48 S.E. Rep. 775. But where no fiduciary relations exist, a breach of a mere verbal promise to purchase lands for another, who then had no interest in the lands and who did not pay and did not promise to pay any consideration for the service or expenses, and furnished no part of the purchase price, will not by operation of law create a constructive trust in the lands to be decreed by a court of equity. Parramore v. Hampton, 55 Fla. 672, 45 So.2d Rep. 992; Stewart Co. v. Marcus, 207 N.Y. Supp. 685, 124 Misc. Rep. 86.

The mere breach of an oral agreement, standing alone, though often a moral wrong, is not sufficient to establish that fraud in procuring the title which is requisite to render the grantee a trustee ex maleficio, although the fact of such breach may, of course, be looked to, in connection with the other circumstances of the case, as sometimes constituting one of several links in a chain of facts going to prove fraud. If this were not so, the statute of frauds would practically be annuled, because no case can arise in the courts under it except where such a breach is charged, other than cases of fraud, either positive or constructive. 26 R. C. L. 1239. See 42 A. L. R. 28, Notes. See Parramore v. Hampton, 55 Fla. 672, 45 So.2d Rep. 992; Nash v. Jones, 41 W. Va. 769, 24 S.E. Rep. 592; Mitchell v. Wright, 155 Ala. 458, 46 So.2d Rep. 473; 1 Perry on Trusts (6th ed.) 181, 206, Notes; 39 Cyc. 179; Watson v. Erb, 3 Ohio St. 35 ; Largey v. Leggat, 30 Mont. 138, 75 Pac. Rep. 950; Hackney v. Butts, 41 Ark. 393; Allen v. Richard, 83 Mo. 55. See also Bourke v. Callanan, 160 Mass. 195, 35 N.E. Rep. 460; McDonald v. Conway, ___ Mass. ___, 150 N.E. Rep. 200.

In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments, or through undue influence, duress, taking advantage of one's weakness or necessities, or through any other similar means or under any other similar circumstances which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right, and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principal is applied wherever it is necessary for the obtaining of complete justice, although the law may also give the remedy of damages against the wrongdoer. 3 Pomeroy's Eq. Jur. (4th ed) 1053; Pharr v. Fink, 151 Ark. 305, 237 S.W. Rep. 728; 39 Cyc. 182, 188.

When an agent employed to purchase for his principal, purchases for himself, all the profits and advantages gained in the transaction belong to the principal, and the agent will be held to have the property as trustee for his principal. Such a trust comes within the exception provided for in the statute of frauds, as it arises out of the construction of law, and may be established by parol. Boswell v. Cunningham, 32 Fla. 277, 13 So.2d Rep. 354. See 2 C. J. 705; Patrick v. Kirkland, 53 Fla. 768, 43 So.2d Rep. 969; Thomas v. Goodbread, 78 Fla. 278, 82 So.2d Rep. 835; Ward v. Spivey, 18 Fla. 847; Jenckes v. Cook, 9 R.I. 520. But the existence of an agency or other fiduciary relation or an interest in the land or a consideration furnished or promised or other equitable matters must be shown where a constructive trust in lands is sought to be established because of alleged breach of faith in the sale or purchase of land. See Parramore v. Hampton, 55 Fla. 672, 45 So.2d Rep. 922; Aborn v. Padelford, 17 R.I. 143, 20 Atl. Rep. 297; Whiting v. Dyer,21 R.I. 278, 43 Atl. Rep. 181; Ward v. Spivey, 18 Fla. 847; 1 Perry on Trust (6th ed.) 181; 23 A. B. R. 1491, Notes 1500.

A real estate broker is one who, as a business, procures the purchase or sale of lands, acting as middleman or negoitator between potential vendors and purchasers to bring them together and arrange the terms. 2 Clark Skyles on Agency, 799; Handley v. Shaffer, 177 Ala. 636, 59 So.2d Rep. 286.

The engagement of a broker is like to that of a proxy, a factor or other agent; but, with this difference, that the broker, being employed by persons who having opposite interests to manage, he is, as it were, agent both for the one and the other to negotiate the commerce and affair in which he concerns himself. Thus, his engagement is two-fold, and consists in being faithful to all the parties in the execution of what every one of them entrusts him with. And his power is not to treat, but to explain the intentions of both parties, and to negotiate in such a manner as to put those who employ him in a condition to treat together personally. 1 Domat, bk. 1, tit. 17, 1, Strahan's trans.; Hooper v. State of California,155 U.S. 648, text 657, 15 Sup. Ct. Rep. 207.

The vocation of real estate agent or broker, as a distinct occupation for service to the public, has for many years been recognized in this State by requiring privilege licenses to be procured by such agents or brokers; and the provisions of Chapters 10233 and 11336, Acts of 1925, prescribing penalties for any "improper, fraudulent or dishonest dealing" by a real estate broker, is merely declaratory of the general rules of law relative to the standards of conduct by such licensed persons.

A broker is but an agent, and is bound to follow the directions of his principal, or give notice that he declines to continue the agency. Galigher v. Jones, 129 U.S. 193, text 198; 9 C. J. 515. See also Skinner Mfg. Co. v. Douville, 57 Fla. 180, 49 So.2d Rep. 125.

If a broker employed to purchase property buys it for himself, he is considered a trustee for the principal. 9 C. J. 538; Harrison v. Craven, 188 Mo. 590, 87 S.W. Rep. 692.

Contracts between real estate brokers and their customers for the purchase or sale of real estate may be implied. Varn v. Pelot, 55 Fla. 357, 45 So.2d Rep. 1015.

The law requires a real estate broker to act in unqualified good faith in all matters pertaining to finding purchasers or in making sales of property for vendors and in engagements or undertakings to communicate offers from others for the purchase of property; but a status of agency or other fiduciary relation must exist by some means or process recognized by law, in order to create the obligations and duties that the law imposes with resulting consequences on real estate brokers who have fiduciary relations with others in the sale or purchase of land. Whether the agency or other fiduciary relation existed upon a breach of duty in which relation an estate or interest in the nature of a constructive trust in real estate may be decreed in equity, should be determined from the express terms of an engagement or agreement, or by the implication that arises from a due consideration of all the facts and circumstances that are pertinent in each case as it arises. See 2 C. J. 432, et seq.

A real estate broker is not by law required to engage or to undertake to communicate to the owner of property an offer made to him for the purchase of the property; but if he does so engage or promise or undertake, under such circumstances as to create a fiduciary relation, he can not equitably purchase the property for himself to the detriment or disadvantage of the person whose offer he engaged or undertook to communicate to the party having the property for sale. The promise, undertaking or engagement that creates the fiduciary relation may be implied from the relations and conduct of the parties as shown by express agreement. An adjudication of an implied fiduciary relation must be justified by the facts and circumstances properly adduced. These principles are peculiarly applicable when a constructive trust in land is sought to be established because of alleged breach of duty in a fiduciary relation. In such cases where the existence of a fiduciary relation is an issue, and the relation is not shown by an express agreement, the fiduciary nature of the relation should be established by clear and convincing evidence. See Johnston v. Sherehouse, 61 Fla. 647, 54 South, Rep. 892; 39 Cyc. 193, 633; Lefkowitz v. Silver, 182 N.C. 339, 109 S.E. Rep. 56, 23 A. L. R. 1491 and Notes; Hayden v. Dannenberg, 42 Okla. 776, 143 Pac. Rep. 859, Ann. Cas. 1916D, 1191; Dooly v. Pinson, 145 Ala. 659, So.2d Rep. 664; 3 Pomeroy's Eq. Juris. (4th ed.) 1058, p. 2421, Notes.

It is a fundamental principle that the relation of agency can exist only by the will of the principal and with the consent of the agent. 2 C. J. 432.

An agency is created — authority is actually conferred very much as a contract is made, i. e., by an agreement between the principal and agent that such a relation shall exist. The minds of the parties must meet in establishing the agency. The principal must intend that the agent shall act for him, and the agent must intend to accept the authority and act on it, and the intention of the parties must find expression either in words or conduct between them. Central Trust Co. of N.Y. v. Bridges, 57 Fed. Rep. 753, 764.

A party may voluntarily assume a confidential relation toward another, and if he does so, he cannot thereafter do any act for his own gain at the expense of such relation. Allen v. Jackson,122 Ill. 567, 13 N.E. Rep. 840. See also Winn v. Dillon,27 Miss. 494; Trice v. Comstock, 121 Fed. Rep. 620; Russell v. Wade, 146 N.C. 116, 59 S.E. Rep. 345; Bryan v. McNaughton,38 Kan. 98, 16 Pac. Rep. 57.

To lead a person reasonably to suppose that you assent to an oral arrangement is to assent to it, wholly irrespective of fraud. Assent, in the sense of the law, is a matter of overt acts, not of inward unanimity in motives, design, or the interpretation of words. O'Donnell v. Clinton, 145 Mass. 461, text 463, 14 N.E. Rep. 747.

One who leads another reasonably to suppose that he is accepting the agency cannot escape its consequences, though he used no express words and carefully avoided any express acceptance. Wright v. Rankin, 18, 18 Grant Ch. (U. C.), 625; 1 Mechem on Agency (2nd ed.), p. 181, Note.

An agency may be implied from the words and conduct of the parties; and the parties are held to intend what their words and conduct fairly mean under the circumstances as they are made to appear. See 2 C. J. 439.

Where a principal, having no interest in the land to be purchased, makes a verbal contract with a real estate broker to buy for him, and the latter purchases the land in his own name and with his own funds and then repudiates the agency and refuses to convey to the principal, the question whether the contract is within the statute of frauds and not enforceable against the agent, depends upon whether the contract in its essence and effect was one of agency, or was it one for the purchase of real estate. If it was the former, it creates a trust relation, is not within the statute of frauds, and can be established by parol; if the latter, the parties are to that extent dealing with each other as principals and the contract is within the statute and can only be established by such a writing as will meet the requirements thereof. Matney v. Yates, 121 Va. 506, 93 S.E. Rep. 694.

The question here is whether there was a relation of agency between Quinn, a real estate broker, and Phipps, who at Quinn's solicitation through McDonald, made to Quinn an offer for land listed with Quinn for sale, not whether there was a contract for the purchase of land; and it is not material in this case whether Phipps was bound by the offer he requested the broker to present to the owner, or whether Quinn was to be compensated by Phipps.

If Quinn, a real estate broker, is clearly shown to have accepted a request to act, or assumed to act, as the agent of Phipps, whose duty as such agent required him to present the offer of Phipps to the owner of the property, if it could be done without violating Quinn's duty to the owner, and Quinn did not present Phipps' offer, but bought the property himself for less or equal price, then Quinn should be decreed to be constructive trustee for Phipps. Quinn could have presented Phipps' offer to the owner as he apparently acquiesced in a request to do, without violating his duty to the owner, and the offer of Phipps would have been considered by the owner if it had been presented by Quinn. See 9 C. J. 518, 541.

A mere parol agreement to purchase land for another, there being no agency or other fiduciary relation between the parties, and the promisee having no interest in the land and giving no consideration for the promise, does not create such a fiduciary relation that the promisor will be decreed to be a constructive trustee if he purchases the property for himself at his own expense and with his own money. The test is whether the act is inconsistent with duties resulting from a fiduciary relation shown to exist between the parties. See 1 Perry on Trusts (6th ed.), 206, and Notes; Parramore v. Hampton, 55 Fla. 672, 45 So.2d Rep. 992; Pharr v. Fink, 151 Ark. 305, 237 S.W. Rep. 728.

On appeal from a decree based upon evidence, the findings of fact by a Chancellor do not as a matter of law add to the probative force or the legal effect of the evidence as it is adduced and shown by the record, though such findings may be a guide in determining the credibility of witnesses and in reconciling conflicts in the testimony. The findings of a Chancellor upon the evidence will not be disturbed on appeal when the findings are supported by adequate legal evidence and are not clearly wrong on the whole evidence, and applicable rules of law and procedure were duly observed in making the findings. See Johns v. Bowden, 72 Fla. 530, 73 So.2d Rep. 603.

A mere doubt as to whether a finding is justified by the evidence will not authorize the Appellate Court to set aside the finding. Taylor v. Kelly, 103 Cal. 178, 37 Pac. Rep 216.

In case a doubt is raised by a decided conflict in the testimony, and there is no outstanding feature of the case resolving the doubt in favor of either party, an Appellate Court will not disturb the finding of the Chancellor. Craft v. American Agr. Chemical Co., 81 Fla. 55, 87 So.2d Rep. 41.

A finding by a Chancellor on conflicting evidence will not be disturbed by the Appellate Court, where the mind can not repose with entire confidence and certainty on a conclusion in favor of either party. Baggett v. Otis, 65 Fla. 447, 62 South. Rep. 362; Travis v. Travis, 81 Fla. 309, 87 So.2d Rep. 762; Slorah v. Wilcox, 59 Fla. 601, 52 So.2d Rep. 12.

The evidence is legally sufficient to support a finding that Quinn, a real estate broker, having requested McDonald to secure a cash offer for property listed with Quinn for sale, received through McDonald a cash offer of $50,000.00 from Phipps with a request that Quinn communicate the offer to the owner of the land; and that Quinn by his conversation and conduct led McDonald to believe that he (Quinn) as a real estate broker would present the offer of Phipps to the owner of the land. McDonald's testimony as to Quinn's undertaking to present the offer of Phipps should be considered in the light of Quinn's request for an offer. The course of dealing by implication of law created a fiduciary relation between Quinn as a real estate broker and Phipps, an intended purchaser of land listed for sale with the broker; and such fiduciary relation to Phipps was not inconsistent with Quinn's relation and duty to the owner of the land. In view of Quinn's conduct Phipps did not make other arrangements for presenting his offer to the owner. Quinn did not present the offer of Phipps to the owner, who would have considered it, and did not decline to do so, and the evidence justifies a finding that Quinn did not advise Phipps or his agent that Quinn intended to purchase the property for himself. Quinn contracted to purchase the property for himself for $45,000.00, part cash. The conduct of Quinn in calling at Phipps' office in New York on his return from Boston as Quinn said he would do when he asked for the address of Phipps' New York office, the statements made by Quinn in New York to Phipps' agent, Hayman, and other conduct of Quinn were calculated to make Phipps' agents believe that Quinn had presented Phipps' offer to the owner, when instead of doing so Quinn contracted to buy the property for himself. See Kochorinbus v. Maggos, ___ Ill. ___, 154 N.E. 235.

Quinn being a real estate broker, with land listed with him for sale, by his words, acts and course of conduct following a request for an offer and the receipt of an offer from Phipps for the land, assumed a fiduciary relation of agency for Phipps that was not inconsistent with Quinn's duty to the owner of the land, and equity will not permit Qninn to profit by a violation of the duties imposed upon him by law in consequence of such fiduciary relation to Phipps. See Harrison v. Craven, 188 Mo. 590, 87 S.W. Rep. 962; Harrop v. Cole, 85 N.J. Eq. 32, Atl. Rep. 378. It is not necessary or appropriate to discuss the rules that would be applicable to the transaction if Quinn had not been a real estate broker upon whom the law casts fiduciary duties by reason of the occupation. In Amber Petroleum Co. v. Breech, (Tex. Civ. App.) 111 S.W. Rep. 668, the alleged agent does not appear to have been a real estate broker, and it was held that an agency was not shown. In Parramore v. Hampton,55 Fla. 672, 45 So.2d Rep. 992, the defendant was not a real estate broker and no fiduciary relation between the parties was shown. See also Nash v. Jones, 41 W. Va. 769, 24 S.E. Rep. 592; Allen v. Richard, 83 Mo. 55; Hackney v. Butts, 41 Ark. 393; Mitchell v. Wright, 155 Ala. 458, 96 So.2d Rep. 473. In Lazarus v. Sands, 27 N.Y. S. 885, 7 Misc. Rep. 282, it was held that the defendant was not employed by the plaintiff. In Taylor v. Kelly 103 Cal. 178, 37 Pac. Rep. 216, there was no trust relation and the plaintiff was in default.

The business communications between Quinn and the owner of the land contemplated that offers for the property from prospective purchasers could be received and communicated by Quinn to the owner and that commissions to Quinn as a real estate broker for a sale of the land would be paid by the owner. The undertaking of Quinn to present to the owner the offer made by Phipps is implied from his course of conduct, if not otherwise shown, and the fiduciary duty of Quinn as a real estate broker to present the offer did not depend upon a consideration moving from Phipps to Quinn, or upon the use by Quinn of the resources of Phipps in making a purchase of the land, or upon whether the offer of Phipps was binding on him, the question being not as to a contract to purchase the land, but as to the assumption by Quinn, a real estate broker, of a fiduciary relation to Phipps which in law was not inconsistent with Quinn's fiduciary duty to the owner, and which in law imposed a duty on the broker to present the offer made to him at his solicitation by Phipps through McDonald. In Madden v. Cheshire Providant Inst., 77 Kan. 415, 94 Pac Rep. 793, the agent, in the discharge of his duty to the owner, presented to the owner a higher bid made by another which was accepted.

The refusal of Quinn to communicate the offer of Phipps to the owner by long distance telephone as requested by Phipps through McDonald, was apparently for the benefit of Phipps and not adverse to the interests of the owner, since Quinn stated in connection with the request that he preferred to visit the owner in person and would on his return stop in New York and advise the agent of Phipps of the result of his visit which his conduct implied would be to present the offer of Phipps, he having asked McDonald for Phipps' New York office address, and had apparently agreed to comply with the request to present the offer of Phipps. See 1 Mechem on Agency (2nd ed.) 253.

As Quinn's communications with the owner indicated that Quinn's commissions for a sale of the land would be paid by the owner, and as Quinn stated he was going to Philadelphia on another mission and would go on to Boston to see the owner, the mere refusal of Quinn to accept an offer of expense money for the trip to Boston from the agent of Phipps was not notice to Phipps that Quinn would not present the offer of Phipps to the owner or that Quinn would endeavor to purchase the land for himself. The request for and the acceptance by Quinn of an offer from Phipps for lands that had been listed for sale with Quinn, a real estate broker, made it proper, independent of the express understanding, that Quinn should be compensated by the owner of the land if he was the procuring cause of a sale of the land for the owner.

The relation of Quinn, a real estate broker, to the owner of land listed with him for sale, required of Quinn absolute fidelity to the owner's interests; but the listing of the land with Quinn as a real estate broker contemplated the receipt of offers for the land by Quinn to be communicated to the owner. The licensed occupation of real estate broker by implication of law cast upon Quinn a fiduciary duty to faithfully present offers for the land made to him as a broker when such offers are not inconsistent with the interests of the owner; and the law forbids the broker to profit by a breach of his fiduciary duty to either the owner who had listed lands for sale or the one making an offer for the listed land through the licensed broker. A real estate broker can and should be faithful to the owner of lands listed with the broker for sale in accepting and transmitting to the owner proper offers for the land, and should be faithful to those making offers to purchase the land, by communicating the offers to the owner and by not acting for himself to the detriment of those whose offers he has received and undertaken to communicate to the owner.

In this case Quinn was a real estate broker; and by asking for and receiving an offer for lands listed by the owner with Quinn for sale, and by his conduct in the premises, Quinn, by implication of law, accepted a request to communicate the offer to the owner, and thereby as such broker assumed a fiduciary relation to Phipps that was entirely consistent with and was contemplated by the relation between Quinn as a broker, and the owner of the land; and a breach by Quinn of his fiduciary duty to Phipps by failing to present the offer of Phipps, which offer would have been considered by the owner, and by buying the land for himself at a price not in excess of the offer of Phipps without notifying Phipps of his intention to buy for himself so Phipps could make other arrangements to have his offer presented in time for due consideration by the owner, renders Quinn liable for such breach of fiduciary duty to Phipps, the injury to be redressed as may be provided by law. And the injured party, whether it be the owner of the land or the person whose offer was not presented, is not confined to an action at law for damages, but may proceed in equity to have constructive trust in the property decreed upon appropriate procedure under the law of the forum. A breach by Quinn of his fiduciary duty to the owner and the failure of the owner to seek redress does not prevent Phipps from obtaining appropriate redress for the injury resulting in a breach of Quinn's fiduciary duty to Phipps, when Quinn's duty to Phipps was not in any way detrimental to the owner or inconsistent with Quinn's duty to the owner. And it is quite immaterial that Quinn received no compensation from Phipps, since the liability is for a breach by Quinn a real estate broker of a duty imposed by law upon the acceptance or assumption by Quinn of a fiduciary relation to Phipps with reference to the purchase of the lands from the owner thereof, the fiduciary relation and duty of Quinn towards Phipps, a prospective purchaser, being not repugnant to, but consistent with Quinn's fiduciary relation and duty to the owner of the land listed for sale with Quinn, a real estate broker.

TERRELL, J., concurs.