Armstrong v. Palmer

• Decision Date: 21 January 1920
• Docket Number: (No. 1569.)
• Parties: ARMSTRONG v. PALMER et al.
• Court: Texas Court of Appeals

218 S.W. 627

ARMSTRONG v. PALMER et al.

(No. 1569.)

Court of Civil Appeals of Texas. Amarillo.

January 21, 1920.

On Motion for Rehearing, February 25, 1920.

Appeal from District Court, Swisher County; R. C. Joiner, Judge.

Suit by R. S. Palmer and another against H. W. Armstrong and another. Judgment for plaintiffs, and defendant named appeals. Affirmed.

W. F. Hendrix, of El Paso, and Williams & Martin, of Plainview, for appellant.

Culton & Taylor and Dennis Zimmermann, all of Tulia, for appellees.

BOYCE, J.

This suit was brought by R. S. Palmer and E. Brooks against H. W. Armstrong and the First National Bank of Tulia to recover the sum of $1,000, agreed liquidated damages for the breach of a contract between Palmer and Armstrong for the sale of a section of land by Palmer and purchase thereof by the said Armstrong. Trial before a jury resulted in a judgment for the plaintiffs.

E. Brooks, a real estate agent at Tulia, was employed by the plaintiff Palmer to sell the section of land for a stated sum of money, which was to be paid partly in cash, partly in the assumption of certain notes outstanding, and constituting a lien on the land, and partly by the execution by the purchaser of two notes for equal amounts for the balance of the consideration to be made payable January 1, 1919, and January 1, 1920. On May 24, 1918, Armstrong and Brooks executed a contract which was signed by Palmer, by E. Brooks agent, by the terms of which said Palmer agreed to sell and the said Armstrong agreed to buy said section of land. The contract provided for payment of the consideration in accordance with the terms of the enlistment, except that it was provided that three notes should be executed by Armstrong instead of two, and that these notes were to become due June 1, 1919, 1920, and 1921, respectively. This contract contains the following provisions that are material to the consideration of the assignments presented: (1) That the interest on the notes, payment of which was to be assumed by Armstrong, should be paid by Palmer "to date of deed"; (2) that the said Palmer should "furnish abstract and deed within 30 days from date, * * * it being understood that, should there be any defects in said title, party of the first part (Palmer) shall have 60 days further time to perfect same so as to show good and merchantable title; (3) that the sum of $1,000 was placed in the First National Bank of Tulia by Armstrong to apply on first payment and to be paid as liquidated damages in case of breach of the contract by Armstrong; (4) that the existing lease on the land should be canceled on the signing of the contract and immediate possession be given to the purchaser. At the time this contract was drawn and signed by Armstrong and Brooks it was agreed that the contract was made subject to the approval of Palmer by June 1, 1918, and the said H. W. Armstrong so notified. The contract was written by T. W. Tomlinson, of the First National Bank of Tulia, who on the same day, wrote a letter at the instigation of Brooks, whose name was signed to it, R. S. Palmer, who lived out of Swisher county. This letter inclosed the contract and stated that the contract was in accordance with Palmer's enlistment, except as to the payments and explained why this change was necessary. This letter contains the following language in reference to execution of the deed, etc.:

"This deed is to be dated June 1, 1918. * * * This deal depends entirely on the possession after June 1st, as party does not want the land unless immediate possession is given. * * * I suggest that you send me the abstract at once and have the deed prepared so as to execute it on the 1st day of June, and mail to the bank immediately after execution, and I think that we will be able to close up without delay."

On May 31st Palmer wired Brooks as follows:

"Will accept three payments and expect him to pay interest on Mr. Austin's note from June 1st on. If it is a trade let us know."

Austin was the payee of the notes, payment of which was to be assumed by Armstrong. On June 1st Palmer wired Brooks again as follows:

"Have mailed contract and abstract to bank. Answer quick."

Palmer signed the contract on the back under advice of some one that this was the proper way to express his approval thereof, and mailed it and the abstract to the bank at Tulia. The envelope in which they were mailed seems to have been before the jury, and it appears from the testimony that the postmark thereon is June, but the day of the month was not legible. It does not appear just when this letter was received by the bank. There is considerable confusion and conflict in the testimony as to whether Armstrong was notified by Brooks of Palmer's acceptance of the contract on or before June 1st. We need not set this testimony out at length. Taking it all together, we think there is sufficient evidence to warrant the finding of the jury that Armstrong was notified by Brooks by June 1, 1918, that the contract had been approved by Palmer. The particular testimony on which this finding of the jury was based was doubtless the testimony of Brooks that a few days after the signing of the contract—four or five or six he thought—he met Armstrong on the streets of Tulia and told him that "it was a trade," at which time Armstrong informed him that he was not going to take the land as it was too dry. About June 1st, or a few days thereafter, Armstrong was quarantined at home on account of smallpox. On June 15th Brooks wrote him this letter:

"I am writing you a letter as I heard you were quarantined on account of your family having the smallpox. The contract and papers are here in the First National Bank, which are signed by Palmer. He accepted all of your offers of the three payments and the $3,200 down. He will give possession as soon as the deal is closed. They have been here ever since you were here. They will stay here until you come in, so come in as quick as you can and fix the matter up."

R. S. Palmer owned only one-quarter of the section of the land. His son and two sons-in-law each owned a quarter section thereof. The correspondence with Brooks in regard to the sale of the land had been had with R. S. Palmer alone, and no mention made of ownership of parts of the section by others. It does not appear what, if any, authority Palmer had to act for the others prior to May 24th but the evidence is sufficient to warrant the conclusion that on receipt of the letter from Brooks of May 24th inclosing the contract Palmer took up the matter with his son and two sons-in-law, and that before he finally wired Brooks approving the contract he had been authorized by his said son and sons-in-law to go ahead with the sale in accordance with the contract.

The first assignment, that the court erred in refusing to give a peremptory instruction for defendant, is based on two propositions: (1) That the contract was not binding on the son and sons-in-law, owners of three-fourths of the land, because it was not made with their authority, and, as it did not purport to be executed in their behalf, they could not ratify it; (2) that, as the contract was not binding on such parties, it is not mutual, and will not support an action either for specific performance or damages. There is authority to the effect that there can be no ratification of a contract made without authority and which does not purport to bind the person ratifying it. O'Connor v. Camp, 158 S. W. 203; Moore v. Powell, 6 Tex. Civ. App. 43, 25 S. W. 472. And the authorities also support the statement, possibly with some limitations, that "when a person takes upon himself to contract for the sale of an estate where he is not the absolute owner of it nor has it in his power by the ordinary course of law or equity to make himself so, though the owner offer to make the seller a title," yet specific performance of the contract cannot be enforced or damages recovered for a breach against the seller. Pipkin v. James, 1 Humph. (Tenn.) 325, 24 Am. Dec. 655; Hollifield v. Landrum, 31 Tex. Civ. App. 187, 71 S. W. 979; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120; Hahl v. West, 61 Tex. Civ. App. 431, 129 S. W. 876; Townshend v. Goodfellow, 40 Minn. 312, 41 N. W. 1056, 3 L. R. A. 741, 12 Am. St. Rep. 736; Gray v. Smith, 83 Fed. 824, 28 C. C. A. 168; Brown v. Lee, 192 Fed. 822, 113 C. C. A. 141. We need not analyze these authorities, however, because they do not, in our opinion, apply to the facts of this case. The jury found, and the finding is supported by the facts, that the contract written and signed by Armstrong, and by Brooks for Palmer, was not intended to become a contract until R. S. Palmer approved it. The signature of Palmer's name by Brooks, as agent thereto, on May 24th, had no legal importance. The contract was actually made a contract by Palmer's communication of his acceptance thereof. Since before the final act on the part of Palmer which made the instrument a contract he had authority from his son and sons-in-law to go ahead with it, the contract may be truly said to have been made under authority from the said parties, and their acts, instead of being merely a ratification of an already existing contract, was authority for the making of the contract itself. Now, it is established by the decisions of our Supreme Court that the donee of a power to convey real estate may execute the power in his own name without referring in any way to the power or to the donor, and the donor will be bound, if it appear "from the attending circumstances that the donee did in fact act under and by virtue of the power conferred upon him to dispose of the property in question and that it was his intention to dispose of the property in accordance with the power so conferred." Hill v. Conrad, 91 Tex. 345, 43 S. W. 791, and authorities there cited. The same rule will doubtless apply to the making of executory contracts for the sale of real estate. 2 C. J. 683. The cases of Moore...