Taylor v. Wilson

I dissent from the major conclusion reached in this cause for the reason that the question presented is a new one in this state, with no direct precedent, and it seems to me the better policy is to adopt the sounder reason advanced by the Arizona court in Light v. Chandler Improvement Co., 33 Ariz. 101,261 P. 969, 59 A.L.R., 107.

Had this been a case wherein the vendor was directly responsible for the fraud proved, or had he had knowledge thereof before delivery of the deed, it would have been his duty to have made full disclosure of the truth to the vendee concerning the concealed appliance.

To my notion it is a matter of common knowledge that a real estate agent's authority is limited, in that it ends when he has procured a purchaser willing, able, and ready to enter into a contract of purchase. It is also the common understanding that the vendor usually reserves to himself the power to conclude the sale. This was what followed in this instance. It would have been no hardship for the vendee to have then made inquiry of that of which he was greatly concerned.

In this controversy the vendor had no knowledge of the broker's false representation, and I concede that had the vendor had such knowledge the vendee might have elected to pursue his remedy of rescission or retain possession and title and sue for damages; but when a vendor is without knowledge of his broker's fraudulent misrepresentations and conduct, he is not liable for such until he has sought rescission of the vendee, for it is not equitable or just that the vendor be forced into a contract of sale to which he did not agree, and be made to part with his title for a less sum than he was willing to sell.

The cases of Freyer v. McCord, 165 Pa., 539, 30 A. 1024;Dellwo v. Petersen, 32 Idaho 172, 180 P. 167; Mayo v.Wahlgreen, 9 Colo. App., 506, 50 P. 40; Samson v. Beale,27 Wn. 557, 68 P. 180; Lansing v. Coleman, 58 Barb. (N.Y.), 611;Nupen v. Pearce, 235 F., 497, 149 C.C.A., 43; and Decker v.Fredericks, 47 N.J. Law, 469, 1 A. 470, support the reason advanced in the recent Arizona case above cited.

It is therefore my view that the petition and proof were deficient, in that it was not pleaded and proved that rescission had been refused by the vendor. A demurrer to the evidence was well taken, and the motion for a directed verdict should have been sustained.