Dyer v. Duffy et al.

Citation39 W.Va. 148
PartiesDyer v. Duffy et al.
Decision Date28 March 1894
CourtSupreme Court of West Virginia
1. Principal and Agent Sale Power of Attorney.

Where one by writing empowers another to sell land, implying a cash-sale, and the agent simply transfers the writing to a third person, without payment of purchase-money, this is not a sale.

2. Principal and Agent Sale Power of Attorney.

A mere proposal to sell land does not become a sale until accepted, and notice of acceptance given the proposer.

3. Principal and Agent Sale Options.

In unilateral contracts, called options, the time fixed for acceptance is of the essence of the contract,

4. Principal and Agent Sale Power of Attorney.

A power of attorney may tlx a limit of time within which the agent is to do the act. Where it fixes a reasonable time for doing the act, it must be done by the agent within a reasonable time, in order to bind the principal. A proposal of sale made under such power must be accepted within a reasonable time from the date of the power.

5. Principal and Agent Sale Power of Attorney.

One dealing with an agent acting under written power is taken to deal with the power spread out before him, and must inspect it to see whether the agent's act is authorized by the power.

6. Principal and Agent Sale Power of Attorney.

One dealing with a special agent dees so at his peril. He must be careful to see that the agent's authority covers the act he does.

7. Principal and Agent Sale Power of Attorney.

An agent appointed by parol to sell land can not receive-purchase-money, unless so authorized by his power.

8. Principal and Agent Sale Power of Attorney.

A power of attorney merely to sell land implies that the agent shall sell for cash, and he can not sell on credit in the absence of authority contained in such power of attorney.

9. Specific Performance.

Specific performance being addressed to the sound discretion of the court, the party asking it must have been ready, willing, and prompt in the performance of those things incumbent on him, and where he has not been so, and it would impose hardship and be inequitable upon the other party, specific performance will be refused.

J. II. Ferguson, for appellants. Brown, Jackson & Knight, for appellee. Brannon, President:

This is a chancery suit of E. B. Dyer against P. F. Duffy and others in the Circuit Court of Kanawha county, by which Dyer sought to compel J. N". Camden and George W. Curtin to convey to him certain lands on Grassy creek and Elk river in Webster county. The decree compelled Camden and Curtin to make such conveyance, and they appeal.

In response to a letter from Duffy, not in the record, the nature of which we can only glean from the reply, Camden wrote the following letter:

"Parkersburg, W. Va., April 30tei, 1888. "P. F. Duffy, Esq., Charleston, W. Va. "Dear Sir:

"Your favor of the 17th instant received, stating that if I will give you an option for a short time on the Elk and Grassy creek lands in Webster county, you think you can sell the same for one dollar per acre. I will be glad to sell at one dollar an acre and will confirm any sale you make to that effect within a reasonable time. I will also sell you the lands at seventy five cents (75) per acre, if you conclude to take them yourself and will let me know about it soon-

"Yours, very truly,

"J. N Camden."

Upon it is this indorsement, made May 8, 1888: "I hereby transfer the within to E. B. Dyer.

"P. F. Duffy." Camden afterwards sold and conveyed the land to Curtin.

A question which at once presents itself is: Has Dyer any right to the land such as he can enforce against Camden, irrespective of the rights of Curtin? If he has not, he can succeed against neither. The letter of Camden to Duffy presents two legal features. The one makes Duffy Camden's agent to sell his land; the other makes a proposal to sell the land to Duffy. Let us look at it in the first aspect. When Duffy indorsed on the letter, "I assign the within to E. B. Dyer," what did he assign? It is vague and uncertain. He could not assign the agency the power to sell for Camden since an agent without power of substitution in his authority can not assign his power. Story, Ag. § 13.

But it is said that Duffy, as agent for Camden, under the first clause, sold the land to Dyer. May we not as well or more plausibly say that, taking only the assignment, it relates to the personal right of Duffy? But does this assignment purport to be an act of agency or of sale? It does not purport to be the act of Camden by Duffy, his agent. When an agent does an act for his principal, he must in some way indicate that it is the act of a principal by an agent. We have to annex the letter to the assignment, it is true; but still it remains indefinite, whether it is an attempted subrogation of Dyer to Duffy's power to sell, or an assignment of his own right to purchase, or a sale as agent. It contains not a word importing a present sale of land. It gives no terms. Where no terms are fixed, cash is implied, I know; but I use this argument to show that it is straining the act and implying a sale to treat these few words of assignment as a sale. If the parties intended it as a final act of sale, would they not have made a more definite instrument? It seems likely that Duffy gave it simply to authorize Dyer to find a purchaser. Dyer did set about seeking a purchaser, tending to show that he did not regard himself then a purchaser. If he and Duffy intended by the assignment to make a final sale, would we not expect that Duffy would require cash, as Camden's letter would legally import, or that, if on credit, they would fix terms of credit? Would Dyer risk his purchase without, either paying or seeing to terms of credit?

Dyer set about seeking a purchaser until, having found one, as he thought, he concluded to consummate a purchase and on October 13, 1888, deposited in bank, to Duffy's credit, the purchase-money. His action indicates that he did not regard himself a purchaser by mere force of the assignment, as he risked no money on it.

There is another consideration repelling any idea that we can hold Dyer a purchaser on the late of the assignment. Camden's letter gave no credit. Dyer paid not a dollar down. He took, if Duffy did not give, nearly six months' credit, and Duffy had no authority to make a credit sale, and such a sale would not bind Camden. One dealing with an agent under written power deals with that power before him, and Dyer did have this letter before him and took it into possession. One dealing with an agent under written power must take notice of his powers, as an act not authorized is not binding on the principal. Curry v. Hall, 15 W. Va 867; Hewes v. Doddridge, 1 Rob. (Va.) 143; Stainback v. Read, 11 Gratt. 281. Duffy was a special agent to sell particular land, not a general agent, and those dealing with-a special agent do so at their peril as to his authority. 2 Kent. Comm. 621; Story Ag. § 126. A sale on credit would not bind Camden, as under a mere power to sell land, not authorizing credit, the agent can not sell on credit. 1 Pars. Cont. 58; Burks v. Hubbard, 69 Ala. 367; Delafield v. Illinois, 26 Wend. 192; School Dist. v. Aetna Ins. Co., 62 Me. 330; Lumpkin v. Wilson, 5 Heisk. 555; 1 Am. & Eng. Enc. Law, 360; 2 Kent. Comm. 622; Story, Ag. § 77. The deposit of purchase-money in bank was no payment to Camden, as it was deposited to Duffy's credit, and, as the power to Duffy was only a parol power to sell, he could not receive purchase-money. Mann's Ex'r v. Robinson, 19 W. Va. 49. An agent empowered by seal to sell or sell and convey for cash, or perhaps to sell and convey merely, may receive the money; but if the power is by parol, and does not expressly authorize the agent to receive the money, or, though under seal, provides for a credit, he can not receive it. If, without payment, there had been a consummated binding contract, this would not be material. Duffy had a silent, undefined interest in the land, but the money going to Camden was separately his, and Duffy's interest would not authorize him to receive it.

Another reason against compeling Camden to specific performance of the alleged sale is, that he empowered Duffy to sell "within a reasonable time." The assignment was in a reasonable time; but it could not alone constitute a sale. No money was paid nor terms of credit provided for. If we treat this assignment as a finished sale, we must call it, as between agent and purchaser, a credit unauthorized by the power, not binding Camden, he being ignorant of it. I use this as a circumstance against any theory, that this assignment made a sale. It is the only act within a reasonable time; the act of deposit, the next act, not being within a reasonable time. I do not mean, that under the letter Duffy could not within a reasonable time make a proposal to sell to be accepted within a reasonable time, or that, if so accepted, payment was essential to the birth of a contract; fori think that such a proposal, so accepted, would make a contract, and Dyer need not pay until he received a deed, unless payment were made an essential element of acceptance a condition precedent to the birth of a contract.

If we say that the deposit in bank: was an act of payment under the sale made by the assignment, it came too late, because, as an act constituting an essential part of the sale, treating it as an election by Dyer to take the land, it was not within the reasonabe time required by the letter of Camden, and because that required a payment to Camden, not a deposit to Duffy's credit, he having no authority to rcceive; and because, if it had even been deposited to Camden's credit, it would not be good, unless with notice of the deposit he waived money-payment; and because also Camden had no notice whatever of such deposit, until he had sold the land to another until indeed this suit was brought. But it will be said that Duffy knew of this deposit. That...

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