Graber v. Dreiling
| Decision Date | 06 June 1931 |
| Docket Number | 29,634 |
| Parties | P. J. GRABER, Appellant, v. NICK DREILING and ELIZABETH DREILING, Appellees, et al |
| Court | Kansas Supreme Court |
Decided January, 1931.
Appeal from Kingman district court; GEORGE L. HAY, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
FRAUDS STATUTE OF--Unauthorized Contract Affecting Land--Ratification. In a vendee's action for specific performance, or in lieu thereof for a note or its value given in part payment of the real property, the record is examined and it is held: (1) The owner of the real property cannot be held on the contract, not having signed it nor authorized in writing anyone to make the contract for him; (2) that not knowing the terms of the contract, he did not ratify it; (3) that he cannot be held for a payment to a person who had no authority to act for him.
S. S. Alexander and C. C. Calkin, both of Kingman, for the appellant.
W. D. Jochems and J. Wirth Sargent, both of Wichita, for the appellees.
This is an action brought by the vendee in a written contract for the sale of real property, for specific performance, and, in the alternative, for the return of a $ 3,000 note which he had executed as a part of the purchase price, or for judgment for that sum. The defendants were Nick Dreiling and wife and their son, F. N. Dreiling. The trial court made findings of fact and rendered judgment in favor of plaintiff for the alternative sum against F. N. Dreiling, but denied plaintiff judgment against Nick Dreiling and wife. From the last part of this judgment plaintiff has appealed.
Nick Dreiling and his wife lived at Hays, Kan. He owned a 225-acre farm in Kingman county which was encumbered by a mortgage to the Federal Land Bank. When the land was acquired, subject to the federal loan, Nick Dreiling paid $ 6,000 towards its purchase, and perhaps Pete Dreiling, a son who lived at Hays paid $ 2,500. At any rate, it was orally agreed among them that when the land was sold Nick Dreiling should be first paid $ 6,000 and Pete Dreiling $ 2,500, and that the balance should be divided, fifty per cent to Nick Dreiling and twenty-five per cent each to F. N. and Pete Dreiling. F. N. Dreiling lived at Wichita and looked after renting the farm and paying taxes and interest. On July 25, 1928, F. N. Dreiling, as agent, executed a contract in writing for the sale of the Kingman county land to plaintiff. He intrusted this contract to one John G. Schmitt, to be taken to plaintiff for his execution. It seems that plaintiff held a note for $ 6,000 executed by Schmitt and indorsed by F. N. Dreiling. Schmitt's instructions were to get the $ 6,000 note, indorsed by plaintiff and his sons, and to get $ 4,000 in money or notes. The deal Schmitt made was for plaintiff to surrender the $ 6,000 note, execute his note for $ 3,000, and take the Kingman county land subject to the federal loan. Plaintiff knew F. N. Dreiling wanted this last-mentioned note to be for $ 4,000, but Schmitt agreed with him that he would make that up in some other way to F. N. Dreiling. Plaintiff executed his note for $ 3,000, but made it payable to John G. Schmitt, knowing at the time that the title was in Nick Dreiling and that a deed from him and his wife would have to be obtained. Schmitt sold plaintiff's $ 3,000 note to a third party and got the money on it. No part of that money was given to Nick Dreiling or his wife. Schmitt did pay F. N. Dreiling several hundred dollars of a prior indebtedness, and perhaps used the proceeds of this note to make that payment; but F. N. Dreiling did not know the money came from that source and did not knowingly receive the proceeds of that note. Nick Dreiling and wife did not sign the contract to plaintiff, nor did they authorize F. N. Dreiling in writing to enter into any contract for the sale of the Kingman county land, and they did not know, until long afterwards, the terms of the contract made by Schmitt with plaintiff. The day after this contract was executed F. N. Dreiling called his brother, Pete Dreiling, by telephone and asked him to have their father send him a deed for the Kingman county land. Nick Dreiling and wife did execute a deed, naming plaintiff as grantee, for the Kingman county land, which deed reserved in the grantors a share of the oil, gas and other minerals in the land, and sent this deed to F. N. Dreiling at Wichita. Plaintiff declined to accept this deed because of the mineral reservations, and it was returned to Nick Dreiling, and by him destroyed. The $ 6,000 note was impounded with the clerk of the court. The...
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