Donnan v. Adams

• Decision Date: 10 December 1902
• Citation: 71 S.W. 580
• Parties: DONNAN v. ADAMS.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

71 S.W. 580

DONNAN v. ADAMS.^*

Court of Civil Appeals of Texas.

December 10, 1902.

Appeal from district court, Bexar county; S. J. Brooks, Judge.

Action by John K. Donnan against Jay E. Adams. From a judgment for defendant, plaintiff appeals. Affirmed.

Lewis Maverick and R. B. Minor, for appellant. J. A. Buckler, for appellee.

FLY, J.

This is a suit instituted by appellant to recover of appellee damages in the sum of $4,800, alleged to have accrued by reason of the sale by appellee of certain land which he had authorized an agent to sell and which the latter had sold to appellant; the land in the meantime having been sold by appellee to a third person. The trial was by the court and resulted in a judgment for appellee.

We adopt the findings of fact of the district judge: "(1) About February 20, 1901, the defendant, J. E. Adams, informed D. H. Walsh that he had a tract of land, 320 acres, in E. W. Wallace survey, in Hardin county, that he desired to sell, and gave him a pencil memorandum of which the following is a copy: `Undivided half of E. W. Wallace survey of 640 acres, west of Olive, $3.00. Other half owned by Olive Sternberg & Co., of Olive. [Signed] J. E. Adams.' At the same time he requested Walsh to sell the land at $3.00 per acre, and stated that he hoped he (Walsh) could make a sale of it, as he had done considerable business for him (Adams), for which he had received no pay, and he would like for Walsh to make the commission. (2) Walsh at this time was the agent for Adams in renting and looking after a house in Austin, but was handling no other lands for him, though some years before this date he had tried to sell another tract belonging to Adams. (3) On April 12, 1901, Walsh wrote to Adams, and asked if the price of the Hardin county land was still $3 an acre, and on April 13, 1901, Adams wrote to Walsh on other business, but added a postscript to the card as follows: `320 Hardin Co. land now $5.00 per acre.' (4) On April 19, 1901, the defendant, Adams, sold the tract of land in question to Jefferson Donovan for $1,920, and the deed therefor was duly filed for record in Hardin county on the 22d day of April, 1901. (5) On April 24, 1901, D. H. Walsh sold the land to plaintiff, John K. Donnan, and entered into the written contract a copy of which is attached to plaintiff's petition, and at the same time the said Donnan gave said Walsh $100 as forfeit money under said contract, which was returned to him after Adams refused to carry out the contract. (6) The plaintiff, John K. Donnan, was willing and able to carry out said contract, and continually insisted on compliance therewith by Adams. (7) Walsh notified Adams on that date of the contract of sale he had made with Donnan, and Adams immediately advised Walsh and Donnan that he had sold the land, and that Walsh had no power to make the contract, and declined to carry out the same; and thereafter Donnan brought this suit. (8) The market value of land at any time between the 24th day of April and the 15th day of June, 1901, was $10 per acre. (9) The market value at the date of this trial was not over $5 per acre. (10) There was no actual notice to either Walsh or Donnan of any termination of Walsh's authority to sell, nor that Adams had sold the land himself."

The proposition of law propounded by appellant under the first assignment of error is that the authority given by appellee to Walsh to sell the land carried with it the power and authority to consummate the sale by a written memorandum or contract of sale. The proposition presents a subject which has been the prolific source of many decisions in the different courts of the Union. In Texas the question has never been fully considered by the supreme court, and no satisfactory decision has therefore been rendered by that court. We will briefly review the Texas cases cited by appellant. In the case of Fisher v. Bowser, 41 Tex. 222, suit was instituted to compel specific performance upon the part of the owner of land; the claim being based upon a contract of sale signed by an agent. The opinion is very meager and unsatisfactory, and it does not appear what the terms of the instrument creating the agency contained. In the cases of Rodgers v. Bass, 46 Tex. 505, Harrell v. Zimpleman, 66 Tex. 292, 17 S. W. 478, and De Cordova v. Bahn, 74 Tex. 643, 12 S. W. 845, the question does not arise. In Wynne v. Parke, 89 Tex. 413, 34 S. W. 907, the agent had a written power of attorney which authorized him to dispose of real estate, and gave him full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as one might or could do if personally present." The court held that it gave authority to the agent to execute a deed to the land, and we think the language comprehensive enough to fully sustain the decision. In Loan Agency v. Miller, 94 Tex. 464, 61 S. W. 477, the power of attorney gave the authority as follows: "For me and in my name to buy and sell lands, goods, and chattels, to receipt for me and in my name, and to transact all the business necessary in the transaction of my affairs. And I, Jane Beauchamp, do hereby empower the said Charles as my attorney in fact to sign my name as my attorney, and I do further bind and confirm all the acts of said Charles as may be necessary and legal as my attorney in fact, hereby acknowledging every act or acts of said Charles as my attorney in fact as binding on me as if the same were done by me personally, hereby binding my heirs, executors, administrators, or assigns to regard the act or acts of said Charles as my attorney in fact as binding as if executed by me, Jane Beauchamp, in my proper person. No one questioned the authority conferred on the agent to sell, the only contention being that the agent could only sell lands which he had bought, or, in other words, that land owned by the maker of the instrument when it was executed was not affected by the power conferred on the agent. This court did not discuss the question at issue in the case of Tynan v. Dullnig, 25 S. W. 465; the only matter considered being that of subagency.

From our investigation of the subject we arrive at the conclusion that the extent of the authority conferred by a memorandum in writing merely empowering an agent to sell must be determined by the circumstances under which the power is given, the person to whom it is given, and all facts surrounding the parties at the time of the execution of the writing. If the language of the writing or the circumstances surrounding the parties indicate that it was intended to confer the power on the agent to enter into contracts of sale and bind his principal by written contract, then the naked power to find a purchaser will confer no such authority on the agent. This position is well settled by decisions of a number of states.

In the case of Carstens v. McReavy (Wash.) 25 Pac. 471, the agent had been authorized by writing to sell certain real estate. The agent sold the property and executed a contract for its sale, which was repudiated by the owner; his contention being that the agent had no authority to execute the contract. The court said: "The statute of frauds may be satisfied by the execution of a contract for the sale of lands by the hand of another person than the party to be charged, if that person be thereunto lawfully authorized; and it is well settled that such third person may be thus lawfully authorized orally, by written direction not under seal, and even by a course of conduct amounting to an estoppel. It therefore only remains to determine whether the ordinary real estate agent or broker authorized to sell land, is thereby empowered to enter into a contract binding upon his principal in an action for specific performance. A real estate agent is a person who is, generally speaking, engaged in the business of procuring purchases or sales of lands for third persons upon a commission contingent upon success. He owes no affirmative duty to his client is not liable to him for negligence or failure, and may recede from his employment at will, without notice. On the other hand courts almost unanimously unite in holding that in case of an ordinary employment to sell, when he has procured a party able and willing to buy upon the terms demanded by his principal, and has notified him of the purchaser's readiness to buy, the agent's work is ended, and he is entitled to his commission. It is not his duty to procure a contract, or to make one, and he is not in default if he fails to do either. Therefore, to our minds, it seems clear that, ordinarily, it is not within the contemplation of the owner and agent, where property of this character is placed in the hands of the latter for sale, that he shall, without consultation with his client, execute a contract. We are aware that courts have held to this extent, basing their decisions upon a distinction between an authority to sell and an authority to find a purchaser, and upon the well known rule that an authority to an agent to do a thing is presumed to include all the necessary and usual means of executing it with effect. But such holdings do not commend themselves to our judgment, and as this is a new question in this state, and we are satisfied that it is not the general practice of agents to make such contracts, we do not hesitate to dissent from the decisions above mentioned,...