I dissent.
The issue presented in this case is whether any reasonable inference may be drawn other than one supporting, contrary to the trial court’s judgment, a constructive trust or resulting trust.
There is no substantial dispute between Mazzera and Wolf that they had an oral agreement that Wolf should, buy the property for the joint benefit of the parties. But in addition to that, any conflict there may have been in the evidence with regard to that agreement has been resolved by the trial court in its findings. It found: “Plaintiff and Defendant Ed Wolf met casually upon the . . . [Gilbeau] lot and held a general conversation with each other on various subjects, in the course of which conversation Plaintiff proposed to Defendant Ed Wolf that, he; Wolf, endeavor to purchase the lot from the owner, taking title in his own name, and that they would then go fifty fifty in the property, each taking an undivided one-half interest. To this proposal Defendant Ed Wolf assented.” Fortifying that finding is the opinion of the trial judge. He there stated that the decision of the case “turns on a question of law” as the “essential facts, except for minor *539variations in the testimony as to the exact words of the parties when the oral agreement was made” are not in dispute. While it is true the judge stated that he need not discuss whether there was a price limitation, he indicated that a complete agreement was made in which the minds of the parties met. The judge said in his memorandum opinion that: “The circumstances surrounding the conversation do not suggest that the parties were indulging in idle talk. It seems more than likely to the Court that neither misunderstood the other.” This is in harmony with the conclusions of law which state that the contract (found in the findings of fact above quoted) was not enforceable because of the statute of frauds. Those conclusions also state that there was no partnership between the parties, and that there was no trust created by the agreement above mentioned. It thus appears that the court found that there was a meeting of the minds and an agreement was made, and that all of the legal theories were given general consideration in the conclusions of law.
The only possible inferences that may be drawn from the foregoing finding of an agreement is (1) that Wolf was acting as Mazzera’s agent or (2) that Wolf was to advance the purchase money for a one-half interest in the property for Mazzera. A fair appraisal of the findings cannot, as asserted by the majority opinion, point to a third possible inference, namely, that Wolf, as an independent actor, was to purchase property and then sell a half interest to Mazzera. According to the finding the parties were to “go fifty-fifty” on the deal. That means that Wolf was acting for Mazzera. He was not acting independently as a speculative buyer of property which he would later sell to Mazzera. Where a person pursuant to an agreement acts for another we have a principal-agent relationship. “An agent is one who represents another, called principal, in dealings with third persons. Such representation is called agency.” (Civ. Code, § 2295.) Under the agreement as found by the court, Wolf was to purchase the lot for Mazzera and himself. If that is not an agency relation it is hard to imagine one. But even if there is no agency the only other rational inference would be that Wolf would advance half of the purchase price as a loan to Mazzera.
The result is the same whether we have an agency or a loan. If it is an agency then the agent (Wolf) holds a half interest in the property as constructive trustee for the prin*540cipal (Mazzera) and the statute of frauds is inapplicable. (Stromerson v. Averill, 22 Cal.2d 808 [141 P.2d 732].) If Mazzera’s half of the purchase price was to be advanced by Wolf then we have a loan from Wolf to Mazzera (the law implies a promise by Mazzera to pay the loan [Viner v. Untrecht, 26 Cal.2d 261, 270 [158 P.2d 3] ; Brown v. Spencer, 163 Cal. 589 [126 P. 493] ; Couts v. Winston, 153 Cal. 686 [96 P. 357]) and a resulting trust follows which is also exempt from the statute of frauds. (Viner v. Untrecht, supra; Watson v. Poore, 18 Cal.2d 302 [115 P.2d 478].)
Bearing upon the evidence of agency and the necessity of such a conclusion from the court’s finding of the agreement, it is aptly said in O’Connor v. Irvine, 74 Cal. 435, 439 [16 P. 236] : “It was not necessary for the plaintiff to show the defendant agreed in formal or express language that he would make the purchase for Pair and others, and hold it for their benefit. It is sufficient if it was mutually understood between the parties that he was so acting in their behalf. What was said and done by the parties, so far as the evidence shows, is capable of only one interpretation, and establishes a perfect understanding between the parties, as above stated. Under such circumstances, although the language used may not of itself show an express promise, it is the duty of the party whose services are sought, if he does not mean to act in accordance with the evident expectation of the parties with whom he is dealing, to expressly declare that he will not; otherwise his silent acquiescence is a fraud.” (Emphasis added.) Likewise, in the instant case there is no need for an express agreement of agency. There is no magic in the use of the word agent or principal by the parties. Their conduct and agreement speak for themselves.
If it be conceded that under the evidence the trial court could have found either an agency or the lack of it or a loan or the absence of it, then it has failed to find upon material vital issues. It has found the agreement as above stated. If inferences either way may be drawn from that agreement, then the trial court should make such deduction and find the ultimate facts. This it has not done. It has gone part way and found the agreement, thus leaving the matter suspended without an actual determination. At least the case should be returned to the trial court to enable it to express itself on the subject.
Schauer, J., concurred.