Denton v. Hicks
| Decision Date | 02 March 1956 |
| Citation | 290 S.W.2d 833 |
| Parties | Murrell DENTON, Appellant, v. Sophronia HICKS et al., Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Richard L. Garnett, Glasgow, for appellant.
W. E. Jones, T. L. Hatchett, Jack Longshore, Glasgow, for appellees.
The appellant, Murrell Denton, instituted this action seeking specific performance of a written contract for the sale of realty located near Glasgow. The appellees, defendants below, are Sophronia Hicks, who owned the property; Taylor & Taylor Realty & Auction Company, who conducted the public auction at which the property was sold; and Jack Longshore, a Glasgow attorney, allegedly an agent of Mrs. Hicks in the sale of the property.
At the time of the sale, Mrs. Hicks resided in Massachusetts. She had instructed Longshore to sell the property for her, and he retained Taylor & Taylor to manage the public auction. It is undisputed that Denton was the highest bidder at the sale, and that after the auction a written contract for the sale of the property was signed by Denton and by Longshore, the latter signing as agent for Mrs. Hicks. When Mrs. Hicks was informed of the purchase price, she attempted to reject the sale, and refused to execute a deed to the property.
On the trial, the appellees contended that Mrs. Hicks had reserved the right to reject the sale, and relied upon the following provisions of her contract with Taylor & Taylor, which had been sent to her in Massachusetts, and which she had signed there:
'* * * If sale should be rejected by us, we agree to pay said agents (Taylor & Taylor) a commission equal to 3% of the highest bid at said sale * * *.
'We agree to make a general Warranty Deed to the purchaser free and clear of all liens in case the sale is accepted by us on the terms to be agreed on and announced at the sale. * * *'
The trial judge concluded that Mrs. Hicks had exercised a right of rejection which she had reserved under the provisions of the auction contract just quoted.
On this appeal, Denton contends that Longshore was an agent of Mrs. Hicks. Therefore, his signature on the contract of sale was binding upon her as principal; and, since it was not conditioned upon a further acceptance by Mrs. Hicks, the contract of her agent should be enforced specifically against her.
The appellees assert that the judgment should be affirmed because (1) the right of rejection was reserved specifically; (2) the requirements of the Statute of Frauds were not met; and (3) the sale was void because it was not made in accordance with Mrs. Hicks' instructions, and it was not ratified by her.
From our analysis of the language of the contract between Mrs. Hicks and Taylor & Taylor we conclude that the trial judge was clearly erroneous in his finding that the right of rejection was reserved by Mrs. Hicks. We think the contract reserved only the right to reject, at the time bidding ceased, and in no event, later than the completion and signing of the contract of sale.
Mrs. Hicks testified that she did...
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Anderson's Ex'x v. Hockensmith
...v. Reinberger, 192 Ky. 608, 234 S.W. 300; Adams v.Commonwealth ex rel. State Highway Commission, 285 Ky. 38, 146 S.W.2d 7; Denton v. Hicks, Ky., 290 S.W.2d 833; Simmons v. Atteberry, Ky., 310 S.W.2d 543. The right after waiver cannot be reclaimed and revived by a motion for a new trial. 89 ......