Campbell v. Beard.
| Decision Date | 28 March 1905 |
| Citation | 57 W.Va. 501 |
| Parties | Campbell v. Beard. |
| Court | West Virginia Supreme Court |
1. Prcncipal and Agent.
An agent having authority to sell one tract of land at a stipulated price, or that tract and another combined for a certain other stipulated price, may, within the time limit of his written authority, and with the assent of his principal, verbally expressed, make separate sales of the two tracts to one person at prices which amount, in the aggregate, to the sum for which he was authorized to sell the two tracts combined, (p. 507.)
2. Principal and Agent Agents Authority.
In such case, by consent of the principal, expressed as aforesaid, at the time of the effectuation of the sale of the one tract, which the agent is authorized to sell separately, and in the course of the negotiation therefor, election to take the other tract, which the agent was not originally authorized to sell separately, at a price, which, added to the price stipulated for the single tract, will equal the price fixed for both, may be exercised by the purchaser of such first mentioned tract, at a subsequent date within the period of the agent's authority to sell. (p. 508.)
Principal and Agent Contract Construed.
If. in such case, the written contract between the principal and agent, gives to the latter an option to purchase the property at the prices named therein, he may, at the time of selling the one tract, which he is authorized to sell separately, at the price stipulated therefor, as a part of the same transaction, bind his principal to sell to him the other tract for the residue of the price fixed for the two tracts combined, by accepting the proposition of sale as to it. (p. 509.)
4. Sale of Realty Contract by Mail.
When parties have adopted the United States Mail as a means of communication in their negotiations, the mailing of a letter, accepting an offer of sale, makes a complete and binding contract of sale, dating from the moment of the deposit of the letter in the postoffice. (p. 509.)
5. Contracts by Mail Evidence of Letter.
Evidence establishing the receipt of such letter, accompanied.by proof of the day on which it was written, dispenses with the necessity of proof in detail of the addressing, stamping and deposit thereof, when there is no objection to the form in which the evidence is introduced, (p. 509.)
(). Primary Evidence When Waived Letter.
Non-production of a letter, relevant and important as evidence, is waived, by failure to object to proof of its contents, (p. 508.)
7. Contracts by Mail Evidence of Mailing Letter.
Proof, by a witness, that he wrote a letter on a certain day, accompanied by proof of its receipt by the party to whom it was written, at the time it would have arrived at its destination in due course of mail, is sufficient to support a finding' that it was mailed on the clay on which it was written, (p. 509.)
8. Sale of Realty Specific Performance Wife's Signature Pleadings.
Specific performance of a contract of sale of real estate will not be refused, merely because it does not affirmtively appear that the vendor's wife is willing to join in the conveyance, her unwillingness to do so not having been pleaded as a defense, (p. 511.)
Appeal from Circuit Court, Pocahontas County.
Bill by E. W. Campbell against C. E. Beard and others. Decree for plaintiff, and defendants appeal.
Reversed.
Mollohan, McClintic & Mathews and L. M. McClintic, for appellants.
R. S. Turk, for appellee.
The principal question presented by this record is, whether a contract of sale of a tract of four hundred and seventy acres of land was effected. Peculiarity in the relation of the parties makes it necessary to present the facts in detail. C. E. Beard and his wife owned a tract of two thousand eight hundred and thirty-seven acres of timber lands in Pocahontas county. Beard and 1). A. Penick owned another tract of four hundred and seventy acres which had some timber on it. The owners of both these tracts desired to sell the same, the former for $50,000 and the latter at ten dollars per acre. Jacob Yost, of Staunton, Virginia, had, as agent, been dealing in similar lands in that county and was in touch with persons in Pennsylvania, and perhaps elsewhere, to whom he thought he could sell these lands. Accordingly, Beard, on the 22nd day of August, 1902, entered into two written contracts with Yost, the first of which authorized him to sell the large tract at the price of $50,000, of which one-third was to be paid in cash and the balance in equal installments at one, two and three years, with interest, to be secured by a vendor's lien. It further authorized him to sell the four hundred and seventy acre tract, described therein as the Beard and Penick land at ten dollars per acre, payable on the same terms. An important clause in the first contract, made a part of the second by reference, reads as follows: ''Upon notice from the party of the second part that prospective purchasers or their representatives will visit and examine the land at a certain definite time, the party of the first part hereby agrees to grant to the party of the second part, or to his assigns, an exclusive option to purchase on the conditions named above, said option to extend over-such time as may be necessary to examine land and titles and make report thereon, but not to exceed twenty (20) days."
Yost at once entered into negotiations for the sale of these lands with the firm of Geo. W. Campbell & Son, of Warren, Pennsylvania. They sent one Morrison to Pocahontas county, to examine the land, who, after looking over the two tracts, informed Yost that his report as to the large one would be favorable, and, as to the smaller one, unfavorable. Perceiving the danger of a loss of the sale, Yost applied to Beard for a modification of the contracts, to which request Beard acceded and signed an instrument which reads as follows:
The manifest purpose of this modification was to induce a sale of the large tract. By it, Beard bound himself to sell, with that tract, all his interest in the small tract, for the price of the large tract alone. He owned but one-fourth of the small tract while Penick owned the residue, and Penick had authorized him to sell his interest at the rate of five dollars an acre, which amounted to nearly $1,800.00 the amount added to the price of the large tract. According" to Yost's testimony, this is the basis on which the modification was made, but Beard says he reduced the price of the large tract by $1,000, 00 and made the price of the small one $2,800.00 in determining the price of the twro tracts combined. However this may be, the principal reduction was made on the smaller tract. According to Beard's statement, its price was cut nearly one-half, while that of the large tract was reduced by one-fiftieth. So the issue between them as to this is not very important. Being unable to reach an agreeement within the time limited, Yost, at the instance of G. W. Campbell, procured an extension of Yost's authority to sell until the 10th day of October. This was granted on the 24th day of September. At that time, E. W. Campbell, son of G. W. Campbell, and the active member of the firm of G. W. Campbell & Son, was in California. On the 2nd day of October, G. W. Campbell, head of the firm, died, and Yost was notified of the fact. On the 12th day of October, E. W. Campbell telegraphed Yost as follows: "Get fifteen days extension on Beard option, and will go down next week to close deal." On the same day Yost telegraphed Beard as follows: On the next day Beard replied to Yost as follows: "O. K. wire Campbell to come." On the 22nd day of October, 1902, Beard, Yost and John W. Campbell met at Marlinton, West Virginia, for the purpose of effecting the sale. Owing to business engagements which precluded his attendance, E. W. Campbell had sent John W. Campbell, his brother, to represent him, giving him a letter of introduction, directed to Mr. Yost, which read as follows: "This will introduce to you my brother, J no. W. Campbell, who will probably make arrangements with yon for the purchase of the Beard and Lomand lands on Williams River." Neither E. W. Campbell nor John W. Campbell was very familiar with the land or the negotiations relating thereto. The former had just returned from California, and the death of his father had necessarily diverted his mind from business matters, as well as suddenly cast upon him new and additional burdens.
John W. Campbell had suddenly been called upon to act in a matter concerning which he knew but little. Negotiations for the sale of a tract containing more than two thousand acres, known as the Loffland lands, had been carried on between Yost, as agent, and Campbell and Son, while the negotiations for the Beard and Penick land were pending. The letter of introduction mentioned only the Beard land and the Lomand land, but the Beard option contained the small tract, called the Beard and Penick land. John W. Campbell thought he was not authorized to take anything but the Beard land and the Ioffland land mentioned in the letter. Accordin...
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