Babson v. Cox

Mr. Chief Justice Shepabd delivered the opinion of the Court: The first contention of the appellant is that Martin Brothers, were, in fact, the agents of plaintiff, and not of defendant, in the sale. This is without foundation. Plaintiff called on them to purchase property if he could find any that suited him, in their hands for sale. That the property was not then under their agency is immaterial. They saw defendant, and obtained his authority to make the sale. They entered into a written contract with the purchaser, executing it as agents of the seller, who expressly approved the same. The defendant’s mother, vrhom he represented, executed the deed in accordance with the contract, and sent it to the agents for delivery to the purchaser. After the conclusion of the sale, defendant paid the agents the usual commissions. The agents, having closed the sale in strict conformity with the terms of the contract, and being intrusted with the deed for delivery, had the power to receive the agreed consideration. Peck v. Harriott, 6 Serg. & R. 149, 9 Am. Dec. 415; Morrill v. Cone, 22 How. 75, 81, 16 L. ed. 253, 255. It is further contended that, notwithstanding Martin Brothers may have been the agents of the seller, empowered as aforesaid, the purchaser made them his agents for the purpose of discharging the encumbrance out of the purchase money. The testimony does not sustain this contention. By the terms of the special warranty, it was the duty of the seller to discharge this encumbrance, and, while the purchaser may have been careless in not seeing that it was in fact done before making payment, he had the right to rely on the warranty, and was under no obligation to see to the appropriation of his money thereto by the defendant’s agents. The defendant was more negligent. He knew that there was a warranty against the encumbrance, and that it was the duty of the seller to discharge it. He took [550] the word of the fraudulent agents that the encumbrance had been paid out of the purchase money, and, without inquiry, paid their commissions and received the remainder of the money. It being his duty to see that the encumbrance was actually discharged, he must suffer the consequences of his misplaced confidence in the agents. The decree will be affirmed, with costs. Affirmed.