Gallagher v. Wash. County Sav.
| Decision Date | 01 June 1943 |
| Docket Number | (No. 9410) |
| Citation | 125 W.Va. 791 |
| Court | West Virginia Supreme Court |
| Parties | D. E. Gallagher v. Washington County Savings, Loanand Building Company |
The question whether a nonresident owner of West Virginia real property is bound by an alleged contract for the sale thereof, executed on its behalf in West Virginia by a resident of West Virginia purporting to act as the owner's agent, is governed by the laws of this State.
In the absence of actual authority so to do, either express or implied, an agent of a property owner, having no power in himself to sell, may not appoint or authorize a subagent to do so.
The mere fact that a property owner authorizes a real estate broker to exhibit real property to a prospective purchaser and to negotiate for the sale thereof, does not, on the theory of apparent agency, bind the owner on an alleged contract to sell the property, signed by such broker purporting to act as the owner's agent.
Appeal from Circuit Court, Wood County.
Suit by D. E. Gallagher against Washington County Savings, Loan and Building Company for specific performance of contract for sale of certain real property. From a decree for plaintiff, the defendant appeals.
Reversed; bill dismissed.
W. H. Wolfe, Robert B. McDougle and K. C. Moore, for appellant. Wm. Bruce Hoff, for appellee.
Riley, President:
D. E. Gallagher filed his bill in equity in the Circuit Court of Wood County against Washington County Savings, Loan and Building Company, an Ohio corporation, praying for the specific performance of an allegedly enforcible contract for the sale by defendant to plaintiff of a dwelling house and lot situate in Wood County near Williamstown, known as the "Oesterle property". This appeal is from a decree directing defendant to convey title to plaintiff upon the payment by the latter of six thousand dollars, the alleged purchase price, appointing a special commissioner to execute and deliver to plaintiff a deed in the event of defendant's failure to comply, and commanding the Sheriff of Wood County, upon the request of plaintiff, or his counsel, to deliver possession of the property to the plaintiff, which proposed action of the sheriff the decree provides "shall operate as and shall be in lieu of the issuance and execution of a formal writ of possession".
The instrument, which is the basis of this suit, dated March 29, 1940, was prepared in duplicate at plaintiff's request by an officer of a Parkersburg bank. Both copies, except for the signatures are identical, and read as follows:
Subject to the delivery by the owner of a general Warranty Deed free from all encumbrances, on or before May 1, 1940. Taxes are to be paid by Washington County Bldg. & Loan. Possession of the property to be granted on delivery of the Deed.
One copy, identified in the record as "Exhibit No. 2", bears the signature of plaintiff "D. E. Gallagher", and the other, "Exhibit No. 3", is signed "H. H. Garber (Agent)".
Garber is a resident of West Virginia and licensed as a real estate broker under the laws thereof. Prior to the negotiations which culminated in the preparation and signing of the alleged contract, he had been authorized by defendant, acting through one Porter, its real estate agent, and by formal action of its board of directors, to sell the property to one Dieter for six thousand dollars, of which fifteen hundred dollars was to be paid in cash and the balance in deferred payments. The manner in which Garber first became connected with the proposed sale of the property is clearly portrayed by Porter's testimony. On March 4, 1940, Garber interviewed Porter concerning the properties in West Virginia owned by defendant. During the course of the interview, he was advised that defendant would not list its properties with a real estate agent or broker; that defendant had seventy-five hundred dollars in the property; and that if Garber should find a purchaser to whom a sale was approved by defendant's entire board of directors, a commission would be paid on the sale price. On the other hand, Garber testified that, on the occasion of March 4, 1940, interview, Porter authorized him to sell the property for six thousand dollars. Shortly thereafter Garber advertised the property for sale, together with other real property in West Virginia belonging to defendant, and succeeded in interesting Dieter in the possible purchase of the property for six thousand dollars, fifteen hundred dollars to be paid in cash and the balance in deferred payments, and, as suggested, obtained authority from defendant, acting through its board of directors, to sell the property to Dieter on that basis.
Porter's authority as defendant's real estate agent, according to his uncontradicted testimony, was "to collect rents, repair the buildings, find buyers for its different properties, and report to the directors". In answer to the question whether at any time he had power to authorize anybody else to sell the property at any price, he testified, "Well, I tell you, if anybody asked me I always stated to them about what we had in it, but I didn't know how much less than that would buy it; that the only thing they could do would be to meet their offer, and I would take it up with the Board of Directors".
The record further discloses that on March 9, 1940, plaintiff learned from his sister, Blanche Gallagher, then Dieter's secretary, that the Oesterle property was for sale at six thousand dollars, that Garber was undertaking to sell it to Dieter at that price, and that the latter did not intend to buy it. On March 13, 1940, plaintiff, accompanied by his wife, went to Williamstown to see Garber. He was informed by the latter's father that he would have his son, who was not at home, call upon him. The Gallaghers, on their return to Parkersburg, made an effort to inspect the property but were refused admittance by Mrs. Oesterle, the occupant and former owner, who advised plaintiff that the property was not for sale. Upon arriving at Parkersburg, Mrs. Gallagher called the defendant's Marietta office, from the office of the Garrity Real Estate Company of which she was secretary. According to Mrs. Gallagher's testimony, a woman answered the telephone and informed her that Mr. Porter, who usually had charge of the property, was busy at the county treasurer's office and that she "might call Mr. Garber at Williamstown". In response to the question, "What did she give you to understand Mr. Garber was doing", the witness gave the very indefinite answer, "That Mr. Garber was handling the property". Price was not mentioned during this telephone conversation. About the same time Garber informed Gallagher at the latter's office that he thought he had sold the property to Dieter, but if the latter did not buy it, he would be back. Some time later during the same month, Garber informed plaintiff that the. sale to Dieter had failed, and that he had made arrangements to show the property to plaintiff. On March 28, 1940, plaintiff, Mrs. Gallagher, and Garber met at and went through the Oesterle property. This inspection of the property was made after one, Asa D. McCoy, one of defendant's directors, at Garber's request, had arranged through Porter for the interested parties to view the premises. In this regard Mrs. Oesterle testified that "About 9:30 one morning he [Porter] called me and told me the property was for sale and in the hands of Mr. Garber of Williamstown".
On March 29, 1940, Garber, purporting to act for defendant, agreed to sell the property to plaintiff for six thousand dollars and, according to the latter's testimony, the two papers identified as Exhibits Nos. 2 and 3 were prepared and signed, and plaintiff gave his check in the amount of fifty dollars payable to defendant. On the same day Garber gave "the copy of the Contract" to McCoy at defendant's Marietta office. McCoy told Garber to take the papers to Porter who, in turn, directed him to take them to one George W. Strecker, defendant's president and counsel, none of whom, at that time, made any claim that Garber had exceeded his authority. He was advised by Strecker that the matter would be taken up the following night at the regular weekly meeting of defendant's board of directors. On that night Garber went to defendant's office and, after the board meeting was over, was advised by Strecker, "No, we won't sell it for that". On the night of April 2, 1940, plaintiff and Garber saw Porter at his Marietta residence, on which occasion Porter claimed that plaintiff was not Garber's prospect, but was the client or prospect of Garrity Real Estate Company of Parkersburg, and he urged that said company be contacted "before we can do anything about it * * * and find ourselves in the middle".
There is much conflict in the evidence as to the identity of the paper, claimed to be the alleged contract signed by plaintiff, which Garber testified he presented, in turn, to McCoy, Porter and Strecker. This question may or may not be material, depending upon whether Garber, in the circumstances of this case, had authority, either actual or apparent, to bind defendant as to the instant transaction. It may be well to note that, except as to Garber's authority to sell...
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