Farrell v. Edwards

• Decision Date: 07 April 1896
• Parties: FARRELL v. EDWARDS.
• Court: South Dakota Supreme Court

66 N.W. 812

8 S.D. 425

FARRELL v. EDWARDS.

Supreme Court of South Dakota

April 7, 1896

Syllabus by the Judge.

1. The power of an agent to execute a binding contract for the sale of land may be established by letters and telegrams received from his principal.

2. The facts and circumstances disclosed by correspondence between appellant and his purported agent examined, and held to be sufficient to authorize such a contract, and sustain a decree which binds the former to execute and deliver to respondent a deed upon payment of the purchase price according to the terms of said contract.

Appeal from circuit court, Brookings county; J. O. Andrews, Judge.

Action by May Farrell against J. Edwards. Judgment for plaintiff. Defendant appeals. Affirmed.

Alexander & Hooker and Mathews & Murphy, for appellant. Cheever & Hall for respondent.

FULLER J.

At the trial of this cause to the court without a jury, plaintiff obtained a judgment decreeing the specific performance of a contract to sell and convey real estate, and the defendant appeals. The contract for a deed offered in evidence, and considered by the court, was in the usual form, and sufficient to justify a specific performance if H. A. Parsons was authorized to sign the same on the part of appellant. The evidence introduced to show the authority of Parsons to sell the property consists of numerous letters which passed between himself and appellant, from which it appears that after some talk between Parsons and appellant about a sale of the property, and in response to a letter from Parsons received at Ellsworth, Minn., concerning an offer to purchase, made by a third party, appellant, under date February 19, 1894, telegraphed and wrote appellee, in substance, that he had offered the land for $1,050, but had since changed his mind, and that he had decided to keep the property, unless it could be sold for $1,200. On February 24 1894, Parsons wrote appellant in part as follows: "I have been to considerable trouble and some expense, and would like to make a deal of the land. Have seen my party again and induced them to make another offer, of $1,100. Now, will you accept that amount, and give me $25 out of it as a commission. I could probably have sold for more than that if you had not made the break you did, but am unable to get any larger offer under the circumstances, and now, if a stranger comes in to buy, the first thing they tell him is, 'Why the owner offered the land for $1,050.' If you wish to sell the land, better accept the offer made. Let me hear from you at once, and come to White if you can." The next letter of any importance is as follows: "Ellsworth Minn., March 18, 1894. H. A. Parsons, Esq., White, S. D.--Dear Sir: I am going back to Washington Monday. I left all of the papers at Hall's office, notary public, Brookings. If you find a buyer, you can fix up the papers at any of the banks. I want 300 down, and my share of the crop; balance, 900, at 8 per cent. My address Sprague, Washington, Commercial Hotel. Yours, kindly, J. Edwards." On March 30, 1894, Parsons wrote appellant that he could sell the land for $1,200,--$200 cash, balance on time; no part of the crop to be reserved; if deal consummated, Parsons to reserve from cash payment a commission of $25. A few days later, appellant wrote Parsons, declining to accept the foregoing proposition, and adhering to the terms stated under date of March 18th. He concluded his letter as follows: "Can give clean title. You don't have to write me. You can go to Fishback Bank, and make out the papers, and send them to me to sign. Yours, kindly, J. Edwards." Ten days later, appellant wrote as follows: "Sprague, Wash., May 28, 1894. H. A. Parsons, Esq., S. Dakota--Dear Sir: I have decided to accept the proposition you made me a month ago this way: You pay cash payment of $300, and balance draw 8 per cent. until paid, to be made in two or three payments. If you make the deal, you better write me before making out the papers to send to me to sign. Fishback has the abstract. Yours, kindly, J. Edwards." During the time of this correspondence the mail service was greatly interrupted and impaired by reason of a strike upon Western railways, and many of appellant's letters are largely devoted to the strike, and the resulting delay in the receipt and transmission of letters. However, the following letter reached appellant at Spokane Falls, Wash., on the 26th day of July, 1894: "White, South Dakota, 6-23, 1894. Mr. J. Edwards, Sprague, Washington--Dear Sir: I have to-day completed sale of your land, S.W. 1/4, 1-110-48, as per your favor of May 28; i. e. $1,200,--$300 cash, balance 8 per cent., in three payments, with full mortgage back; transfer to be made on or before 30 days from date. Will make deed, and send you for execution in a few days. Your letter was not received by me until June 21. Send me order on Fishback for abstract. Resp'y yours, H. A. Parsons." With apparent satisfaction as to the disposition of the property on the terms he had last specified, and with an expression of regret that the letter informing him of the sale had not been received earlier, appellant immediately wrote Parsons that he would execute the deed as soon as possible, and send it to him, for the purpose of having the deal completed without unnecessary delay. Soon afterwards it was discovered that appellant had mortgaged the premises previous to the...