Gwin v. Tusa ( 1927 )

LAND, J.

This is a suit to compel defendant to specifically perform the alleged acceptance by him of an offer on the part of plaintiff to purchase from defendant a certain portion of ground, consisting of the whole of lot 8 and the half of lot 7, adjoining, measuring 45 feet front on Louisiana avenue, by a depth, between parallel lines, of 128 feet; said portion of ground commencing at a distance of 60 feet from the corner of Louisiana and South Rampart streets, in the city of New Orleans.

From a judgment decreeing specific performance, defendant has appealed.

Defendant denies having accepted any offer whatever from plaintiff to purchase the property in question, and alleges that his signature was obtained to a blank form of offer to purchase by misrepresentation.

1. Defendant’s home is located on part of the property in question. Plaintiff owns adjoining lots, which he uses for a storage yard, and desired to purchase the vacant lot and a half adjacent to defendant’s home, and next to plaintiff’s lots, for the purpose of expanding his storage business.

In order to avoid a storage yard in closer proximity to his residence, defendant had re peatedly refused to sell the property in question to plaintiff, although solicited to do so by plaintiff’s real estate agent.

It is admitted that plaintiff’s agent obtained the signature of defendant, an uneducated Italian, to the unsigned or blank offer of plaintiff to purchase this property. This offer was signed afterwards by plaintiff. It is also admitted that plaintiff’s agent did not disclose the name of plaintiff as his principal to defendant at the time he obtained defendant’s signature.

It appears also that plaintiff’s agent enjoyed the confidence of defendant and had acted as defendant’s agent in the purchase of this property originally by defendant. It is clear to our minds that, if defendant had been advised at the time by plaintiff’s agent as to the name of the prospective purchaser, he would not have consented to the acceptance of plaintiff’s offer to purchase.

It was plainly the duty of plaintiff’s agent to have so advised defendant, before obtaining his signature. While the identity of the purchaser may not be of much importance in many cases, yet, in this particular case,- it was a material fact in obtaining the consent of defendant to the sale of his property.

The concealment by plaintiff’s agent of the fact that plaintiff was the intended purchaser was sufficient therefore, in the case at bar, to vitiate the contract for want of consent on the part of defendant.

We do not mean to hold, however, that it is incumbent upon a real estate agent, as a general rule, to disclose to the owner of property the name of the prospective purchaser.

The judgment appealed from is therefore annulled and reversed. It is now ordered that the purported agreement, evidencing the offer of plaintiff to purchase and its acceptance by defendant,, of date January 20, 1922, be rescinded and set aside, and that the registry of said purported agreement on January 26, 1922, in Book 848, folio 278, of the conveyance office of the parish of Orleans be canceled and erased, and that plaintiff pay all costs.

ROGERS, J., dissents, being of the opinion that the judgment appealed from should be affirmed.