Swengel v. Bruun

Petition for rehearing denied May 26, 1931 ON PETITION FOR REHEARING (299 P. 332) Upon petition for rehearing, plaintiff contends that this court erred in its former opinion in not requiring the defendant Bruun, as well as the Multnomah Realty Brokers, Inc., to make restitution of the moneys paid out by plaintiff under her contract. She says that the rule followed in Sharkey v. TheBurlingame Co., 131 Or. 185 (282 P. 546), should have been applied and that under the doctrine of that case she was entitled to a decree against both defendants for the restitution of the money. That would be true if the facts in the two cases were the same. In the Sharkey case, however, the testimony showed, and the opinion so recites, that the agent Clarke to whom the money had been paid had contracted with his principal, The Burlingame Company, to execute a surety bond and had actually executed such bond conditioned that if Clarke, or any one acting for him, should make any misrepresentation to any purchaser, then the vendor company should cancel its contract with such purchaser and repay him all sums that had been paid thereunder to Clarke and that Clarke would thereupon pay over to the vendor all sums so paid. Under those circumstances, The Burlingame Company, if not actually in possession of the money, as the evidence seemed to show, had such a property right in it that it was entitled under the bond to have it paid over upon demand and, in that case, the fraud complained of had been perpetrated in the course of his employment by one of the agents of that company and while such agent was acting in the interest of his principal.

No such circumstances were shown to exist in the instant case. None of the moneys in controversy here were paid to or received by Bruun and, as to such moneys, he had no property right in them or power to compel their payment to him. The fraud complained of in the instant case was not committed in the course of his employment by an agent acting for Bruun but by a person who was acting as agent for plaintiff's husband. Bruun never authorized the perpetration of the fraud nor did he have any knowledge of its commission and, since he never subsequently ratified the fraud by accepting the benefits of it, he can not now be held to answer for the restitution of money which he has never received.

The distinction between this and the Sharkey case, because of the difference of the facts in the two cases, is so obvious that any further elucidation of them would seem to be unnecessary.

Plaintiff contends that because the contract executed by Bruun and delivered to plaintiff acknowledged the receipt, as part payment of the purchase price, of the moneys paid by plaintiff, it is evidence of the fact that Bruun received the money and, therefore, should be held to be answerable to plaintiff therefor. The contract does not recite to whom the money was paid or that Bruun himself had ever received any part of it. The contract was in the usual form of a contract for the sale of property which acknowledges a part payment of the purchase price, and at the time it was executed both Bruun and plaintiff knew that the money had not been paid to Bruun but had been paid to the Multnomah Realty Brokers, Inc. Except for this one circumstance, all the evidence in the case, including that offered by plaintiff, shows that the money was paid to the agent and not to Bruun. Under such circumstances, we must look to the substance and not to the form of the transaction. There is no contention that Bruun received the money and the whole evidence shows the contrary to be true.

The other points urged by plaintiff and those likewise urged by the Multnomah Realty Brokers, Inc., in its petition for rehearing were all considered in the former opinion and we think properly decided.

Both petitions are, therefore, denied.

BEAN, C.J., ROSSMAN and KELLY, JJ., concur.