McGregor v. Johnson , 58 Wash. 78 ( 1910 )

Crow, J.

Action by Salina McGregor against J. B. Johnson and Annie M. Johnson, his wife, to recover $1,300, ■difference between the actual price of real estate bought for plaintiff by the defendant J. B. Johnson as her agent and an advance price represented by him and paid by her. The trial ■court, after hearing the evidence, in substance found, that the defendants, J. B. Johnson and Annie M. Johnson, are .husband and wife; that the profits arising from the transaction here involved inured to the benefit of the community; ■that the defendant J. B. Johnson, being engaged in the real ■estate business, represented to the plaintiff that, if she would authorize and trust him to purchase real estate for her, he would be able to secure investments below the market value and earn large profits; that, relying on his honesty, ability, And representations, the plaintiff appointed him as her agent to purchase real estate, he to receive as his compensation the regular commissions from vendors; that on or about October 15, 1907, he advised her to enter into a written contract with one L. Bear, a spinster, for the purchase of certain real estate for $5,000; that plaintiff executed the contract and paid $1,500 thereon; that on or about October 16, 1907, the same real estate was sold by one A. Youngquist and wife to L. Bear for $3,700, by written contract, in which at the defendant’s request, the consideration was recited as $5,000; that L. Bear was a mere dummy in both contracts, neither receiving nor paying any consideration therefor; that her name was used to deceive the plaintiff and defraud her out of the difference between $5,000 and $3,700 which the defendant then and there received in addition to $200, commissions, and that immediately after discovering the fraud the plaintiff demanded the return of $1,300, which the defendants refused. Upon these findings a community judgment was entered in favor of the plaintiff, against both of the defendants, who have appealed.

Appellants’ first contention is that the findings are not supported by the evidence, but after reading the entire record we conclude that they must be sustained.

Appellants further contend that the action in effect is one for damages arising out of the alleged wrongful act or tort of J. B. Johnson; that any liability thereby incurred became his separate obligation, and not that of the community consisting of himself and wife. In support of this contention they cite Brotton v. Langert, 1 Wash. 73, 23 Pac. 688, and Floding v. Denholm, 40 Wash. 463, 82 Pac. 738. The latter case, in so far as it can be applied to the facts now before us, fails to support the appellants’ present contention. In the Brotton case the debt incurred arose out of the wrongful act of a constable in making an unwarranted levy and sale which in no way inured to the benefit of the community consisting of himself and wife.

Assuming in the case before us that the appellant J. B. Johnson should be successful in retaining the $1,300 which he wrongfully obtained, there could be no question but that it would become the community property of himself and wife. Under our statute it certainly would not become his separate property. If we were to hold that the obligation he has wrongfully incurred to the respondent is now his separate debt, it would follow that the community, after receiving a financial benefit from his wrongful acts, could retain the same without being called to account or compelled to make restitution. Such a holding could find no support in either law or reason. The community having received the benefit, should now be estopped from denying its liability/

The judgment is affirmed.

Rudkin, C. J., Mount, Parker, and Dunbar, JJ., concur.