Dayton v. Buford

• Decision Date: 01 January 1873
• Citation: 18 Minn. 111
• Parties: JAMES R. DAYTON v. H. MARSHALL BUFORD.
• Court: Minnesota Supreme Court

18 Minn. 111

JAMES R. DAYTON

v. H. MARSHALL BUFORD.

Supreme Court of Minnesota.

Appeal by plaintiff from a judgment of the district court, Dodge county.

The action was to enforce a contract to convey real estate made on behalf of defendant by an agent. The only point in the case was the agent's authority. The defendant entered the lands, 880 acres, in the books of G. B. Cooley, a real estate broker, for sale, and requested one Ellis, who lived near the lands, to send any person who might examine them to Cooley, as his agent, to sell them. Afterwards Cooley wrote to defendant asking instructions as to price and terms, and in answer, defendant wrote: "If you can sell the whole of my land to prompt and responsible parties, I will take three dollars an acre, either cash or half down, and the balance in one and two years, secured by notes bearing 9 per cent. interest, and a mortgage on the whole tract; or I will sell a portion of the lands for three dollars and fifty cents an acre on same terms." Plaintiff, who had been told by Ellis what defendant had told him, went to Cooley and entered into a contract for the whole of the lands at the price of $3,000, — half to be paid within 30 days, upon the delivery of a deed, and half in two years, with interest at 10 per cent., secured by mortgage on the lands.

Cornell & Bradley, for appellant.

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A. J. Edgerton, for respondent.

RIPLEY, C. J.

The main error, in the plaintiff's view of the case, which led the referee to his conclusion that Cooley was not authorized to sell the lands upon the terms upon which he bargained them to the plaintiff, is in holding that the authority of Cooley, whatever it may have been prior to the letter of defendant of June 29, 1868, was fixed and limited by that letter when it was received by Cooley, prior to the bargain with the plaintiff. He contends that the letter did not limit the agent's powers, for the reason that it was a confidential communication, intended to be kept secret, and not to be communicated to persons desiring to purchase. Whether that was the intention or not is a question of fact. The plaintiff is therefore in error in supposing that the nature, effect, and true interpretation of the correspondence between Cooley and defendant is not a question of fact for a jury or referee, but of law for the court.

If, however, it is a question of fact, the plaintiff further suggests that the finding of the referee on the point [the third finding of fact] is based wholly and exclusively upon the correspondence.

We are unable to see why the referee may not be supposed, like the plaintiff, to have construed the correspondence with reference to the actual state of things, and the existing relations of the parties. Supposing, nevertheless, that the plaintiff is right in his assumption, the general rule, that where there is any competent evidence reasonably tending to sustain the finding of a referee upon a question of fact, the finding will not be disturbed in this court, unless the finding is most manifestly and palpably against the weight of evidence, is not affected by the fact that all the evidence introduced before the referee was written or printed. Havens v. Humphrey, 12 Minn. 298, (Gil. 196.)

Upon these principles the finding is not to be disturbed. It may be admitted that by best cash price, the agent inquires for the lowest price at which defendant will sell for cash. Plaintiff's argument, however, is here built up upon an incorrect quotation of the whole sentence. "Send me your best price, either cash, or part cash and part time," is by no means synonymous with "send me your best cash price; also price, part cash, part time."

Whatever the force, however, of the italicised words, the agent goes on to inform the defendant that the land is difficult of sale; that it will not sell for more than three dollars to three dollars and a half per acre, and he is...