Brandon v. Pritchett

• Decision Date: 17 August 1906
• Parties: BRANDON . v. PRITCHETT.
• Court: Georgia Supreme Court

55 S.E. 241

126 Ga. 286

BRANDON .

v.PRITCHETT.

Supreme Court of Georgia.

Aug. 17, 1906.

1. Frauds, Statute of—Authority to Make Memorandum.

There is no statute in this state requiring the authority to make the memorandum required by the statute of frauds to be in writing, and such authority may be conferred by parol.

[Ed. Note.—For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 187, 254, 255.]

2. Same—Sale of Land—Parol Ratification.

A parol ratification of a contract for the sale of land, made by one without authority assuming to act for the owner, is valid and binding upon the, owner, provided the person assuming to act as agent in behalf of such owner signed a memorandum which, in its terms, complied with the provisions of the statute of frauds, which showed upon its face that it was executed in behalf of the owner.

(Syllabus by the Court.)

3. Principal and Agent — Authority of Agent—Revocation.

An agency for the sale of land, not created upon a valuable consideration, nor coupled with an interest in the land may be revoked upon the mere volition of the principal at any time before the sale is effected. If the agent, by another, submits the property to a proposed purchaser, who agrees to buy upon the terms offered, but, before any written contract is made or any part of the purchase money is paid, the principal revokes the authority to sell and notifies the agent, who in turn notifies the proposed purchaser, no subsequent negotiations between the agent and the purchaser would bind the principal. (Per Atkinson, J., dissenting.)

4. Same.

Such power of sale as just described, though expressed in writing, may be revoked by parol. (Per Atkinson, J., dissenting.)

5. Frauds, Statute of—Executory Contract to Sell Lands.

An executory contract for the sale of land is within the statute of frauds as adopted in this state, and, to be binding, must be in writing.

(a) An agency to execute such a contract is required by the Civ. Code 1895, § 3002, to be in writing.

(b) Express ratification of such an act must be of equal solemnity with that required for the delegation of the original authority necessary to authorize the act in advance of its execution.

(c) An executory written contract for the sale of hind by an assumed agent did not become ratified by the mere verbal statement of the owner to the pretended purchaser, after knowledge of the writing by the assumed agent, to the effect that he had decided to make the deed, and would, on the following day, execute the same.

(d) There was no evidence sufficient to require the defendant to execute a deed to the plaintiff, and the court did not commit error in direct ing a verdict for the defendant. (Per Atkinson J„ dissenting.)

Error from Superior Court, Laurens County; H. G. Lewis, Judge.

Action by D. S. Brandon against T. J. Pritchett. Judgment for defendant. Plaintiff brings error. Reversed.

Daley & Bussey and Peyton L. Wade, for plaintiff In error.

Sanders & Davis, for defendant in error.

COBB, P. J. Brandon brought an action against Pritchett, praying for the specific performance of a contract for the sale of a described parcel of land. The judge directed a verdict for the defendant, and Brandon excepted. The case of the prevailing party, taken in its most favorable light, may by thus stated: Pritchett in a writing signed by him authorized Grier to sell a parcel of land at a stated sum, the authority to sell to continue for three days only. Before any contract of sale was made by Grier, Pritchett revoked the authority. The revocation was by parol. After the revocation but within the three days, Grier made a contract with Brandon for the sale of the land, and signed in his Individual name a memorandum reciting that he had sold the land to Brandon as the agent of Pritchett, which memorandum, so far as Its contents were concerned, would be a sufficient compliance with the statute of frauds. Within the three days, and after the signing of this memorandum by Grier, Pritchett was approached by an attorney representing Brandon, and informed of the contract which Grier had made, and presented with a deed with the request that he sign it. At the time the deed was presented, there was an offer to make a tender of the amount of the money specified in the memorandum signed by Grier, which was the same amount specified in the original paper conferring authority upon Grier to make the sale. Pritchett waived the tender of the money, and agreed that the matter should stand as if a tender which was legally complete had been made. Pritchett declined to sign the deed at that time. On the next day, or the next day but one, the attorney for Brandon approached Prichett and told him he had a check for the amount of the pur-chase money, and was ready to pay it over if he would sign the deed, and Pritchett said: "I have concluded that I will sign the deed. I will go to your office in the morning." This statement by Pritchett that he would sign the deed on the following day was within the three-day limit fixed in the writing which conferred the authority to sell upon Grier. Pritchett thereafter refused to sign the deed, and has never signed it.

The general rule of the common law was that an agent might be appointed by parol. Judge Story said, in 1839, that It was absolutely indispensable to the exigencies of commercial business that the rule should be as stated, for, otherwise, the most ordinary transactions would be greatly embarrassed, if not obstructed. Story on Agency (9th Ed.) § 47. If this was true at that day, how much more true is it at the present time? If no one could sign for another a check or promissory note, or bill of exchange, or accept the same or indorse such papers, or sell or buy goods, or write a letter, or procure a policy of Insurance, unless authorized by a writing, the operations of the business world would be retarded at every step. There were a few exceptions to this general rule. One was that where the act required a writing under seal, the authority to do the act must generally be conferred by an instrument under seal. But there were even exceptions to this exception. There was also another exception to the general rule, founded upon the strict notions of the old common law; and that was that an agent of a corporation must ordinarily receive his appointment to do any act for the corporation by an instrument under the common seal of the corporation. But this exception has been greatly relaxed in modern times. The statute of frauds requires certain contracts to be In writing, but there is no provision in that statute requiring the authority of an agent to make the contract to be also in writing. The general rule in England as well as In America was and is, that, although a contract for the sale of land must be in writing, an agent may be appointed by parol to make the contract, the general rule being that unless the statute expressly require the authority to be in writing an agent may be authorized by parol to make a contract for the sale of land. Mechem on Agency, § 89; Browne on Statute of Frauds (5th Ed.) § 370; Wood on Statute of Frauds, 778-786; 1 Reed on Statute of Frauds, § 377.

In some states statutes have been passed which require the authority of an agent to make a sale of land, or other contracts within the purview of the statute of frauds, to be In writing. In the absence of such a statute, the common law prevails; and while the contract for the sale of land, to be enforceable, must be in writing signed by the party to be charged, or by some one duly authorized by him. the authority of the agent to sign the writing may be created by parol. If one assumes to represent another when he has no authority, or, having a limited authority, exceeds Its limits, when the person in whose behalf the act is done repudiates the act he is not bound. But if, with full knowledge of all the circumstances he approves the act, he is bound just as if authority had originally been given to the person assuming to act as agent. It is, however, the general rule that the act of ratification must be of the same nature as that which would be required for conferring the authority in the first instance. If sealed authority was indispensable, sealed ratification must be shown. If written authority was required, written ratification must appear. Mechem on Agency, § 136. If there is any law requiriug the creation of the agency to be in writing, a parol ratification of the agency would not be sufficient. Mechem on Agency, § 144. In the present case, the evidence authorized a finding that Pritchett bad ratified in parol the unauthorized writing made by Grier to sell his land. Grier assumed to act as the agent for Pritchett, after his agency had been revoked. The writing, therefore, goes for nothing, unless there was a ratification. Whether Pritchett would be bound by the parol ratification depends upon whether there is any statute in this state requiring the authority of an agent to make the memorandum required by the statute of frauds to be conferred in writing. If there is no such statute, the rule of the common law, which allowed the agent to be appointed by parol, is still the law of this state. There is no statute in this state changing the common-law rule. Smith v. Insurance Ass'n, 111 Ga. 737, 36 S. E. 957. Watson v. Brightwell, 60 Ga. 212. The Code declares: "The act creating the agency must be executed with the same formality (and need have no more) as the law prescribes for the execution of the act for which the agency is created. A corporation may create an agent in its usual mode of transacting business, and without its corporate seal." Civ. Code 1895, § 3002. This section did not have its origin in a statute of this state. It appears for the first time in the Code of 1863. It is to be construed as a codification of the existing law, unless there are words in the section which imperatively demand a construction which would change the rule in force at the time the...