Schrager v. Cool

Opinion by

Mr. Justice Fell,

The assignments of error to be considered relate to the effect of the statute of frauds on the contract on which a recovery was allowed. The facts as established by the verdict are as follows: The plaintiff employed the defendant, a real estate, agent, to purchase land for him and to obtain a loan to be secured on it and used in part payment of the purchase price; the defendant was to be repaid all expenses incurred by him in attending to the business and a commission for his services. The defendant in violation of his duty purchased the land in his own name but made the first payment, when the contract was signed, with money received from the plaintiff for that purpose. When the plaintiff learned that the defendant was named as purchaser in the contract, he was led to acquiesce because of the defendant’s assurance that he would advance the balance of the purchase money and that if he held the title the expense of preparing and recording a mortgage would be saved. The land was sold through the agency of the defendant at a profit, and during the negotiations for its sale the plaintiff was always treated as the owner and consulted at every step. The defendant refused to pay the balance of the purchase price received by him after deducting his expenses, commissions and advances, but tendered the .plaintiff a part thereof in settlement.

Facts, which if admitted would givé rise to an implied or resulting trust, may be proved orally; otherwise the exception of those trusts from the statute of frauds would be inoperative. A trust will spring from the fraud practiced where one employed to negotiate for another takes advantage of the opportunity to obtain a conveyance to himself. Whether in this case the acquiescence of the plaintiff in the taking of title by the defendant left him anything to rely upon except an unwritten promise to hold the land for him need not be considered, for a trust also arose from the payment of the purchase money, which could be established by parol evidence. Where an agent to buy land uses his own money to complete the purchase, the transaction will be regarded as a loan to the principal. Nor does the fact that he pays in full out of his own funds necessarily exclude the operation of the principle: Notes to Dyer v. Dyer, 1 Leading Oases in Equity, *203.

The verdict should be sustained also on the ground taken by the learned judge in submitting the case to the jury, that .the action was not for land, and did not involve the title to land, but was for profits made by the sale of land, which, were in. the hands of the defendant. If he was an agent, the statute of frauds would not prevent a recovery under Benjamin v. Zell, 100 Pa. 33; Everhart’s Appeal, 106 Pa. 349; Howell v. Kelly, 149 Pa. 473.

The judgment is affirmed.