Grant v. Burrows

• Decision Date: 19 May 1919
• Docket Number: 228
• Citation: 212 S.W. 95,139 Ark. 16
• Parties: GRANT v. BURROWS
• Court: Arkansas Supreme Court

212 S.W. 95

139 Ark. 16

GRANT v. BURROWS

No. 228

Supreme Court of Arkansas

May 19, 1919

Appeal from Miller Chancery Court; Jas. D. Shaver, Chancellor affirmed.

Decree affirmed.

J. M Carter, for appellants.

1. Dr Grant had no authority to bind any of the heirs, owners of the place, in any contract with appellee. If he had any authority he exceeded it in leasing it for a period longer than a year. The declarations and transactions of a person are not of themselves evidence of his agency against the principal. 85 Ark. 256. Being the husband of one of the owners does not dispense with the necessity of proving Dr Grant's authority to act as his wife's agent in the conduct of her business, or make his statements about his authority to act proof of that fact. 44 Ark. 214.

2. Appellee's contention of the construction of this contract comes squarely within the statute of frauds. Kirby's Digest, § 3664; 114 Ark. 126; 20 Cyc. 227; Tiedeman on Real Property, § 177 and notes; 73 Ark. 302.

An oral agreement to rescind the sale of land is within the statute of frauds. 91 Ark. 139.

One of the owners is incapacitated to bind himself, and his curator is without authority to bind the insane party except through the orders of the district court of Caddo Parish, Louisiana. A curator cannot do what the principal is not authorized to do.

None of the unauthorized acts of the cotenant could bind the others. 91 Ark. 139. See also 81 S.W. 629; 43 N.Y.S. 849.

All that could possibly be claimed as authority for Dr. Grant to bind appellants in a lease contract is the knowledge and acquiescence on the part of the heirs that he was assuming to rent and actually renting the place from year to year with the reservation of the right by them to sell and terminate the lease at any time. Appellee admits that such was the understanding under the first contract, and admits that he made no inquiry of appellants, Dr. Grant or any one else as to whether Dr. Grant had authority to make such a vital change in the new contract. The evidence shows that the defendant owners had no knowledge or information whatever that Dr. Grant had undertaken to vary the terms of the old contract by any new one, and appellee admits that he made no inquiry and Dr. Grant never informed appellants nor even his wife that he had undertaken to do so.

The proof shows that appellee has not been injured or damaged by reason of the improvements made and taxes paid because the use of the place since the contract was made was worth much more than the value of the improvements he made under the contract and if he was damaged by reason of part performance, he cannot charge it to the owners of the land; it would be attributable to his own negligence in failing to ascertain the extent of Dr. Grant's authority. The statute of frauds requires that before the owners are bound by the acts of Dr. Grant that he be lawfully authorized by writing, and if not his acts have no other effect in law or equity than to create a lease not exceeding one year. It was appellee's duty to demand and examine his authority in writing. 86 P. 610.

One who deals with an agent is put upon inquiry and must discover the agent's authority. 5 So. 190; 2 L. R. A. 808; 31 Cyc. 1322.

Dr. Grant's authority was in writing and his instructions were in law brought to the knowledge of appellee and all others dealing with him and his power to bind will be limited by these known instructions or limitations. 85 N.Y. 278; 39 Am. Rep. 657; 50 S.E. 1000.

An agent has no implied authority to do acts that are unusual, extraordinary or unnecessary. For such acts he should secure special authority. 57 Ill.App. 184; 44 Me. 177; 13 So. 282; 51 N.Y.S. 530. See also 31 Ark. 216; 92 Id. 320. The case in 103 Ark. 79 is not applicable here.

3. Appellants are not estopped to deny Dr. Grant's authority. They have done nothing to mislead appellee to his detriment. The court erred in holding that appellee had a valid lease until January, 1922, and in dismissing the cross-complaint.

M. E. Sanderson, for appellee.

1. The testimony shows that Dr. Grant had authority to bind appellants by the contract. The court below found that he had authority to act for and was the agent of appellants. Its findings will not be disturbed unless clearly against the preponderance of the testimony. 110 Ark. 355; 89 Id. 132; 72 Id. 67.

When an agent transacts the principal's business, renting the farm, collecting rents, directing repairs, etc., he is a general agent. 118 Iowa 337; 92 N.W. 58. An agent may prove his agency. 122 Ark. 357. Dr. Grant proved his agency not only by his acts and declarations but by his general control of the plantation. And his acts were within the scope of both his actual and apparent authority. 103 Ark. 79; 112 Id. 63; 13 Id. 86; 131 Id. 377. See also 132 Id. 317; 114 Id. 300; 208 S.W. 786.

Dr. Grant's wife was bound by his acts. 56 Ark. 217; 92 Id. 315; 103 Id. 484; 127 Id. 530.

2. The contract does not fall within the statute of frauds. Kirby's Digest, § 3664; 112 Ark. 562; 55 Id. 294; 81 Id. 70; 91 Id. 280; 79 Id. 100; 117 Id. 500.

On the cross-appeal the court erred in denying appellee the right to purchase. The cases cited, supra, settle the question of Dr. Grant's agency and authority and the stipulation in the contract is binding on appellants. A contract of lease which stipulates that the lessee at the expiration of the lease may purchase the land is binding and enforceable. 80 Ark. 209. See also 79 Ark. 100; 55 Id. 294. Appellants are bound under the contract as to the lease but not as to the right to purchase and the court below should have rendered a decree for appellee on his cross-complaint.

HUMPHREYS J. HART, J., dissenting.

OPINION

HUMPHREYS, J.

Appellee instituted suit against appellants in the Miller Chancery Court to prevent the sale to a third party of the "California Plantation" on Red River in said county. The basis of the suit was a written contract entered into by and between appellee and one R. L. Grant, of date September 25, 1916, providing, in substance, that appellee should become the tenant of appellants on said property for a period of five years, beginning on the first day of January, 1917, and ending on January 1, 1922, for the use of which appellee was to pay all the taxes on the estate during the period and to clear 200 acres of land and make other valuable improvements. The last clause in the contract was an agreement on the part of R. L. Grant to sell the plantation to appellee at the expiration of the lease for $ 10 per acre for the lands east of the levee, and $ 20 per acre for the lands west of the levee.

The final issues presented by the several pleadings and the evidence adduced were (a) whether appellee was a tenant for a five-year term or merely a tenant from year to year; (b) whether appellee had the right to purchase the plantation on or before January 1, 1922.

Upon hearing, the court found and decreed that appellee was a tenant of appellants for a term ending the 1st day of January, 1922, and that appellants were not obligated to sell the lands to appellee. Appellants have appealed from the findings and decree adverse to them, and appellee has prosecuted a cross-appeal from the findings and decree adverse to him.

The plantation was formerly owned by Joseph Boisseau, the father of all the appellants except R. L. Grant, who was his son-in-law. Joseph Boisseau died owning this plantation in the year 1906, leaving seven children, four of whom owned the plantation at the time this suit was instituted. Mrs. Bessie S. Grant owned three-fourteenths, Miss Nettie Boisseau six-fourteenths, Mrs. Augurs three-fourteenths, and Joseph Boisseau, Jr., two-fourteenths. Joseph Boisseau, Jr., was of unsound mind and resided with his duly appointed guardian, W C. Augurs, who had authority by virtue of his guardianship to lease, but not sell, his ward's interest in said plantation. Dr. R. L. Grant and Bessie S. Grant, his wife, lived at Texarkana, near the plantation, and the other appellants at Shreveport, Louisiana. Dr. R. L. Grant assumed the management and control of the plantation by and with the consent of the other appellants. The place had been neglected and had little productive value. In 1910, Dr. Grant rented the place to M. B. Armstrong for a term of three years. Armstrong was to make certain improvements in lieu of rents, but failed to make them and had to give up the place. In 1911, he rented the property to appellee for a term of five years, to end on the 31st day of December, 1916, the consideration being that appellee should clean up all the ground that had formerly been in cultivation and make improvements, for which he should be paid a certain proportion of the cost in case the property was sold and appellee compelled to move off before the expiration of his lease. In 1913, a levee district was organized which included a part of this plantation. The levee was completed in the fall of 1916. In the organization of the district, and the construction of the levee, appellee represented the other appellants in all transactions with the levee board, such as agreeing upon the value of the right-of way, receiving damages therefor, etc. For purposes of better representing them, the other appellants at the time conveyed him five acres of land within the district. This deed was never placed of record and Dr. Grant never claimed any interest in the lands under it. It was treated as a matter of form only. On the 25th day of September, 1916, several months before the expiration of the old rental contract between R. L. Grant and appellee, appellee and Dr. R. L. Grant entered into the written contract made the basis of this suit. Appellee continued to occupy the place under this...