Renwick v. Bancroft

Citation9 N.W. 367,56 Iowa 527
PartiesRENWICK v. BANCROFT ET AL
Decision Date21 June 1881
CourtIowa Supreme Court

Appeal from Howard Circuit Court.

THIS is an action in equity, for the specific performance of an alleged verbal contract for the purchase of eighty acres of land; there was a trial upon written evidence, and a decree for the plaintiff. Defendants appeal.

MODIFIED AND AFFIRMED.

Foreman & Marsh, for appellants.

Barker Brothers and H. T. Reed, for appellee.

OPINION

ROTHROCK J.

The land in controversy was the property of the children and heirs of John H. Cutler, deceased. It was wild and uncultivated prairie situated in Howard county in this State. The owners, being some five or six in number, were non-residents of the State. One of them, Lucy F. Whitney with her husband, W. B. Whitney, resided in Chicago Illinois. Some of the others, and possibly all of them, resided in the State of New Hampshire. The plaintiff claims that he made the purchase of the land through J. Barker, real estate agent at Cresco, Iowa, for $ 1050, and that in pursuance of his purchase he paid the said Barker $ 100 in cash and made arrangements with him for $ 150 more to be on deposit until the conveyance should be received from the owners.

The defendants deny the authority of Barker to make the sale, and repudiate the alleged contract made by him with the plaintiff; and here is the ultimate question upon which the case must turn, and which we are required to determine from the evidence, the appeal being here for trial anew.

Before proceeding to an examination of the merits of the case, it is proper that we should say that the action was in the first instance commenced against George Bancroft and Joseph H. Smith, executors of the will of J. H. Cutler, deceased. These parties answered disclaiming any interest in the land, and thereupon the plaintiff amended his petition making the heirs or devisees of said Cutler parties defendant. We are unable to perceive that the making of the executors parties affects any substantial right of either party, or that it should have any bearing in determining the rights of the parties in interest. If the real parties defendant, who are conceded to be the heirs of Cutler, are not bound by the contract made by the plaintiff with Barker, that is an end of the controversy, and there must be a decree dismissing the plaintiff's petition.

We will proceed to examine the rights of the parties with reference to the alleged contract. As has been stated one of said heirs, the wife of W. B. Whitney, resided in Chicago, Illinois. The evidence shows that said W. B. Whitney called upon said Barker at his office in Cresco about the 22 of May, 1878, and stated to Barker that at the request of the administrators and heirs of the Cutler estate he came out to look over the land, with authority to sell or dispose of it in any way that in his judgment might seem best. He stated that he had been to see the land, and that he considered it worth $ 12.50 per acre, and asked Barker if he could sell it for that. Barker replied that he could. Whitney thereupon authorized Barker to sell the land at that price; said he would want at least $ 100 in cash, and that if Barker could get $ 150 or $ 200 in cash to do so; that they wanted to sell to a good party and enough cash to secure the sale. and that the purchaser could have all the time he wanted on deferred payments up to ten years by paying ten per cent on the deferred payments and improving the land; that if any man would deposit $ 100 with Barker on a purchase he could at once take possession and go to breaking, and the money could remain in Barker's hands until the necessary deeds and papers were forwarded. As to the commission to Barker, Whitney said he (Barker) could add $ 50 to price of land; that the owners could not pay any commission out of the price they were asking for the land. These facts were testified to by said Barker and by W. B. Barker, and they were not contradicted by any witness. Whitney was not examined as a witness in the case.

The evidence further shows that on the forenoon of the 27th of May 1878, Barker made a verbal contract with the plaintiff for the sale of the land for $ 1050. Plaintiff paid to Barker $ 100 in cash and made arrangements with Barker to advance for him $ 150 more if the deed should be received from defendants before he could raise that amount, and plaintiff was to pay $ 100 November 1879, and $ 200 a year thereafter until all was paid, with interest at ten per cent. Plaintiff took possession under this contract and broke from fourteen to sixteen acres of prairie.

These facts being established by the evidence beyond all question, it follows that if Whitney was authorized by the owners of the land to make a sale, using his judgment as to value and terms of payment, and if he was further authorized to make the sale through Barker, the defendants are bound thereby. The contract was not within the statute of frauds if the payment of the $ 100 was authorized, because there was not only payment of part of the purchase money, but possession of the land was taken by the purchaser.

II. We will next inquire as to the authority of Whitney to make the sale. Of course the...

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