Field v. Small, 2,327. [1]

• Decision Date: 06 June 1892
• Docket Number: 2,327. [1]
• Parties: FIELD v. SMALL.
• Court: Colorado Supreme Court

30 P. 1034

17 Colo. 386

FIELD v. SMALL.

Supreme Court of Colorado

June 6, 1892

Appeal from district court, Pueblo county.

Action by Althea B. Small against Amanda E. Field for the specific performance of a contract for the sale of land. From a decree for plaintiff, defendant appeals. Reversed.

The other facts fully appear in the following statement by HAYT C.J.:

The contract is evidenced by the following written instrument 'Pueblo, Colo., Jan. 6, 1887. Received of C. H. Small agent, fifty ($50.00) dollars, being a payment on block 43 Pueblo, Colorado, corner of High and River streets; terms of purchase being two thousand ($2,000.00) cash, assume mortgage of Dr. McDonald, ($2,500,) balance, $5,000, to be paid in two years at 8 per cent. These terms to be fully carried out by said C. H. Small, agent, within sixty days, or sale to be void. If said terms are carried out by said C. H. Small agent, within specified time, then Thomas M. Field, agent for Amanda E. Field, to furnish warranty deed and abstract, showing clear title to C. H. Small, agent. Whole price to be paid, $9,500. [Signed] THOS. M. FIELD.' It is alleged in the complaint that Thomas M. Field was, at the time of the making and subscribing of said agreement for the sale of the real property aforesaid, the agent of the defendant Amanda E. Field, and was lawfully authorized by said defendant for her, and in her behalf, to make and enter into such agreement, and to sign the memorandum thereof. This was before the amendment requiring such authority to be in writing. Sess. Laws 1887, p. 274. The defendant admits in her answer that her husband, Thomas M. Field, was her agent for the sale of this property, but denies that he was authorized to give the terms, mentioned in the instrument, sued upon. She alleges that, being in pressing need of $2,000 in cash, she authorized him to sell the property for not less than $10,000, provided she should receive an immediate cash payment of $2,000, and that his authority in the matter was strictly limited accordingly. She denies that the sale was concluded upon the terms set forth in the memorandum, and alleges that the signature of Thomas M. Field, her husband, to the receipt was obtained fraudulently, in total ignorance of its contents, while he was in a condition of gross intoxication from excessive and protracted tracted drinking, and upon the representation and assurance that the sum of $2,000 in cash, together with the deed for her signature, would be sent to her immediately. She avers that she had tendered back to plaintiff the $50 paid to her husband, but that plaintiff had refused to receive the same. She also renews this tender. The plaintiff in her replication denies that any fraud or imposition was practiced upon Mrs. Field, and claims that defendant, with full knowledge of the terms of the sale embodied in the memorandum, ratified and confirmed the transaction. The trial upon these issues resulted in a decree in favor of plaintiff for the conveyance of the property mentioned in the memorandum, upon the terms therein specified.the act of his agent.

Syllabus by the Court

1. When a special agent for the sale of property exceeds the scope of his authority, the principal is not bound by the unauthorized act.

2. Giving an agent authority to sell real estate at a fixed price does not, of itself, authorize such agent to give a third party a mere option to purchase.

3. Before a person can be bound upon the ground of ratification of an unauthorized act of an agent, it must appear that the principal had full knowledge of all the material facts affecting her interests in the transaction.

C. E. Gast and Rucker & Titcomb, for appellant.

Wells, Micheal & Taylor and Westcott & McDaniel, for appellee.

HAYT, C.J., ( after stating the facts.)

Considerable testimony was elicited upon the trial in the district court. This testimony was introduced largely upon the question of actual fraud in the procuration of the original memorandum from Mr. Field; the testimony from the defendant going to show that at the time of the transaction, and for some time prior and subsequent thereto, Mr. Field had been in a state of gross intoxication, utterly unfit to transact business of any kind. The plaintiff, while admitting his intoxication to a certain degree, endeavored to show that at intervals he was capable of transacting business, and that at the time this memorandum was made he was sufficiently sober to understand its full scope and effect. It is conceded that, at the time of the purchase of this property by Mr. Small for his wife, he was the agent of Mrs. Field, and that for some time previous to this date he had had charge of collecting the rents, paying the taxes, etc., upon her property in Pueblo, including the property in controversy in this action. At the time the memorandum was signed it is apparent that Small was the agent for the sale of this property, and that he had been endeavoring to procure a purchaser for the same for some days prior thereto. It is contended upon the one hand, and denied upon the other, that he acted as such agent in selling the property for Mrs. Field while purchasing the same as the agent for his wife. We are of the opinion, however, that the case may be determined purely upon the legal questions involved, regardless of the proof upon the issues just enumerated. The entire case may be disposed of upon consideration of two questions: First. Did Thomas M. Field have authority to bind Mrs. Field in the manner designated in the instrument bearing date January 6th? Second. If not, was she bound by a subsequent ratification of its terms?

It is claimed that there is such a variance between the instrument executed by Thomas M. Field and the contract he was authorized to execute as to invalidate the former. The proof shows beyond doubt that Mr. Field was a special agent for the sale of the property. As such agent he was authorized to sell only upon the following conditions: First, for a price not less than $10,000; second, of the purchase price, not less than $2,000 was to be paid Mrs. Field in cash; third, the deferred payments were to draw 10 per cent. interest per annum. That these were the instructions upon which alone he was authorized to act is conceded; and we think the evidence sufficiently shows that the extent of his agency was known to Mr. Small at the time of the negotiations, although this is quite immaterial. An examination of this memorandum discloses that Mr. Field, in executing the same, exceeded his authority as to price agreeing to accept an amount less by $500 than the sum for which he was authorized to make the sale; that, instead of providing for a cash payment of $2,000, he accepted $50, agreeing to give 60 days upon the remaining $1,950 of the amount. The instrument provides for only 8 per cent. interest per annum to be paid upon the deferred payment, instead of 10 per cent.;...