Derita v. Kernan

7 R.I. Dec. 221

• Court: Superior Court of Rhode Island
• Decided: June 4, 1931
• Docket: No. 85233; No. 85232
• Status: Published

Opinion

SUMNER, J.

The plaintiffs in the above entitled cases brought suit against Thomas O. Kernan to recover money alleged to have been paid to him while he claimed to be the agent of Harry D. and Lydia O. Whitman.

Both of the plaintiffs entered into written contracts for the purchase of lots in Warwick from Harry D. and Lydia O. Whitman. They were to pay in monthly installments. The defendant Kernan signed the contracts on behalf of the AYhitmans.

The plaintiffs never completed making the monthly payments and they claimed that they stopped because they heard -there was trouble between the Whitmans and their agent Kernan.

Any payments made to Kernan while he was legitimately acting as agent for the Whitmans must be recovered in a suit against the Whitmans under the rule laid down in Cullen vs. Donahue, 45 R. I. 287, and Shaclech vs. Knight, 123 Atl. Rep. 593.

The plaintiffs clearly knew at the time they signed the contracts that Kernan was acting as agent for the Whitmans. The Whitmans testified that they terminated the, Kernan agency August 4, 1926. Derita had paid $75 up to June 26, 1926. McGuire’s contract was made September 12, 1927.

If the Whitmans did so terminate the agency, defendant can be held for the money paid by the plaintiffs to him after that date.

The plaintiffs have not satisfied the Court that Kernan’s agency was terminated on August 4, 1926, and that thereafter he collected money which did not belong to him.

Decision for the defendant in both cases.