Cremer v. Wimmer ( 1889 )

Mitchell, J.

Action for damages for the non-performance of a contract for the sale of land. Taking the complaint and reply together, and waiving a discrepancy in dates not here important, they show the following facts: Defendant Joseph Wimmer employed plaintiff as his agent to sell the land in question, agreeing to pay him as commission, in case he found a purchaser, all that was obtained by plaintiff over $900. Plaintiff found a purchaser, one Engel, at $1,000, and so reported to defendants, who thereupon executed to him a contract, by which they sold and agreed to convey to plaintiff personally for $900. Assuming that in taking this contract plaintiff was Engel’s agent, and that although in the name of the former it was made for the benefit of the latter, yet under Gen. St. 1878, c. 66, § 28, plaintiff might sue in his own name; for while he was not technically what would at common law have been called “a trustee of an express trust,” yet the statute referred to expressly provides that this term shall include “a person with whom or in whose name a contract is made for the benefit of another.” The court therefore erred in dismissing the action on the pleadings.

Judgment reversed.