Ballou v. Carter

• Decision Date: 01 October 1912
• Parties: BALLOU v. CARTER et al.
• Court: South Dakota Supreme Court

137 N.W. 603

30 S.D. 11

BALLOU v. CARTER et al.

Supreme Court of South Dakota

October 1, 1912

Appeal from Circuit Court, Kingsbury County; Alva E. Taylor, Judge.

Action by Elvira B. G. Ballou against W. B. Carter and others. From a judgment for plaintiff, defendant F. M. Smith appeals. Affirmed.

William H. Warren, of De Smet, for appellant.

Horner Martens & Goldsmith, of Pierre, for respondent.

CORSON J.

This is an appeal by the defendant F. M. Smith from a judgment entered in favor of the plaintiff, and from the order denying a new trial. The action was instituted by the plaintiff to quiet title to a quarter section of land in Kingsbury county under the provisions of chapter 194, Session Laws of 1903, as amended by chapter 81, Session Laws of 1905, and is in the usual form. The answer of the appellant F. M. Smith admits that the plaintiff is the record owner in fee simple of the land in controversy; admits that the plaintiff is, and has been at all times mentioned in the complaint, in the possession of said premises, but denies that the plaintiff was entitled to possession; admits that the records in the office of the register of deeds of Kingsbury county show that the appellant claims some interest in the above-described real estate. For a counterclaim the appellant alleges that the plaintiff, through her authorized agent, entered into a contract with the appellant for the sale of said premises to him for the purchase price of $2,200, of which $100 was paid in cash, $1,100 to be paid in 30 days, and the balance was to be paid by a mortgage; that the sale was evidenced and consummated by a contract for deed, executed by the plaintiff, by her agent, C. H. Wilcox, on the 4th day of November, 1903, and a copy of which was annexed to defendant's counterclaim and made a part thereof; that the plaintiff, through her agent, refused to execute a usual and sufficient warranty deed to said premises, as she had agreed to furnish, and demands judgment that the plaintiff's complaint be dismissed, and that the court declare a specific performance of said contract, and that the plaintiff deliver to the defendant a sufficient warranty deed upon his compliance with said contract; that the plaintiff be required to account for the rents and profits of said land since the date of said sale to the appellant. Plaintiff filed a reply to said counterclaim, denying substantially all the allegations therein.

In order to a proper understanding of the issues presented, it is necessary to make a brief statement of the facts, which are in substance as follows: The plaintiff is an elderly lady residing in North Orange, Mass. In the year 1903 she, being the owner of the premises in controversy, executed to her son, H. S. Ballou, doing business in Boston as an investment banker under the name of H. S. Ballou & Co., a quitclaim deed to the premises in controversy, with the name of the grantee in blank. One C H. Wilcox, a female broker and real estate agent in Minneapolis, having had some business transactions with H. S. Ballou, on the 18th of July, 1903, wrote the said H. S. Ballou as follows: "Make me the lowest price you will let the Kingsbury lands go for, one-half cash, and give me an option of 30 days, and I have some men from Ill. that I will put in my time specially for you and close them out. Will want 5 per cent. commission only."

The answer to this letter does not appear in the abstract; but on October 29, 1903, she again wrote to H. S. Ballou & Co.: "I have this day sold your land in Kingsbury. *** If sale is accepted wire me on receipt of this letter. *** I will expect commission as this is the full price I have sent you, $2,200." To this letter H. S. Ballou & Co. telegraphed as follows: "Smith offer accepted. Papers sent to Bank of Commerce Tuesday."

A quitclaim deed was forwarded by H. S. Ballou to the bank at Minneapolis, together with mortgage, coupon notes, etc., for execution; but the deed was objected to by said appellant, on the ground that by the terms of his contract he was to have a warranty deed, and that there were several defects in the title. Following these objections was a voluminous correspondence, extending over several weeks, resulting in what appears to be an abandonment of the purchase by the appellant, as appears by the following letter, bearing date of December 5, 1903, from F. M. Smith to H. S. Ballou: "Replying to your letter regarding the Kingsbury county land, will say that I will not pay $200.00 more that the price agreed upon. I bought the land of Mrs. Wilcox for $2,200.00 making a payment of $100.00, and wrote you later that I was ready to accept land at that price as soon as title was perfected. Your last letter asking $2,400.00 for it was forwarded to Mrs. Wilcox asking her to return the $100.00 to me. I do not care to purchase at this price and have since bought another piece, so could not use it now at the former price at which I bought it."

A careful examination of the correspondence fails to show any authority from H. S. Ballou, or H. S. Ballou & Co., to Mrs. Wilcox to execute the contract under which F. M. Smith claims title, or any ratification of the contents thereof, either by the plaintiff, or by H. S. Ballou or H. S. Ballou & Co. No useful purpose would be served by reproducing this correspondence; for, as before stated, it is very voluminous, extending over 30 pages or more of the printed abstract.

The case was tried to the court without a jury, and the court found, among other things: "That no written instrument or other writing, in any manner referring to the said real estate, has ever been signed, executed, or made by the plaintiff, Elvira B. G. Ballou, excepting only the quitclaim deed, referred to in the seventh finding herein. That on or about the date stated therein one C. H. Wilcox, a defendant herein, made and signed an instrument in writing, in words and figures as follows:" (Here follows copy of contract set up in counterclaim.) That said written instrument was filed for record in the office of the register of deeds of said Kingsbury county by the defendant C. H. Wilcox on the 3d day of December, 1903, and that said written instrument has never been delivered to the appellant F. M. Smith. That no money or property whatever has been paid to the plaintiff by or for defendant F. M. Smith as a part of the consideration of the claimed sale of said real estate. That the plaintiff has never in any manner ratified or acted upon or under the aforesaid written instrument. That the plaintiff is in the possession of said real estate, and the whole thereof, and that none of the defendants have ever been in the possession of said real estate or any part thereof.

From the foregoing findings of fact, the court concludes as a matter of law: That the written instrument set out in the answer and in the ninth finding of fact, and the instrument sought to be specifically enforced, is not binding upon the plaintiff, for the reason that said instrument purports to be a unilateral contract for the sale of real estate, executed by the plaintiff in favor of the appellant, but that the same was never delivered to said appellant. That said written instrument purporting to be a contract for the sale of real estate, executed by the agent, C. H. Wilcox, with authority in writing, is invalid and unenforceable as against the...