Gable v. Crane , 24 Pa. Super. 56 ( 1903 )

Per Curiam,

The facts of this case are fully stated in the opinion filed by the learned judge below, and need not be recapitulated by us. Upon the face of the paper declared on, the contract was with Martin K. Gable, the plaintiff’s husband, and the right of action for a breach thereof was in him. But we need not, and do not, put our decision upon the ground that she could not maintain an action for the breach; for even if it be assumed that the evidence admitted, taken in connection with that offered and rejected, was sufficient to warrant a reformation of the instrument upon the ground that Martin K. Gable’s name was inserted in place of the name of his wife by mistake, and to sustain a finding that in reality the contract was with her, we are nevertheless of opinion that the judgment of nonsuit was proper because no liability of the defendant was shown.

It is to be noticed that the action was brought to recover damages for the breach of a contract, evidenced by a memorandum in writing, for the sale of land, that by the evidence, as well as by the writing itself, the defendant acted simply as agent for the Gossler heirs, the owners of the land, and that this fact was known to the plaintiff when the contract was made. In the absence of proof of mala fides or other exceptional circumstances, it is impossible to see upon what ground the agent of the vendor can be held liable in damages for a breach of such a contract. Nor do the facts alleged in the statement, or disclosed on the trial, bring the case within that exceptional class in which an action to recover back the money paid on account of the contract will lie against the agent to whom it was paid. This is not a case where the agency of the defendant was undisclosed, or where the principal had no right to receive the money, or where it was paid by mistake or under duress, or was obtained by fraud, or where the plaintiff was induced to enter into the contract by any fraud, imposition or mala fides upon the part of the defendant, or where it appears that at the time of suit brought, the agent had not paid it over to his principal, in one or more of which particulars it differs from each of the cases cited by appellant’s counsel.

Granting that there was a breach of the contract by the vendor’s refusal to convey and therefore that plaintiff could rescind and recover back the purchase money paid, this alone would not entitle her to maintain the action against the defendant. The case is ruled in principle by Kurzawski v. Schneider, 179 Pa. 500, where Mr. Justice Fell stated the rule of law as follows: “ An agent Avho receives money paid on account of a contract for the purchase of real estate made with his principal cannot be held liable in an action by the purchaser to recover the money back on proof of facts which would entitle the purchaser to rescind the contract.”

In this view of the case it is unnecessary to consider at length the assignments of error relating to the rulings upon evidence; but we remark that if the question asked of the plaintiff as to how the name of Martin Gable happened to be put in the first paper was propounded for the purpose of proving that his name was inserted by mistake, the better practice would have been to have stated the purpose, also that the question referred to in the fifth assignment of error was clearly leading, and was objectionable upon that ground.

Judgment affirmed.