Griffin v. Rosenblum

• Citation: 23 P.2d 348,46 Wyo. 40
• Decision Date: 27 June 1933
• Docket Number: 1802
• Parties: GRIFFIN v. ROSENBLUM
• Court: United States State Supreme Court of Wyoming

23 P.2d 348

46 Wyo. 40

GRIFFIN v. ROSENBLUM

No. 1802

Supreme Court of Wyoming

June 27, 1933

ERROR to District Court, Laramie County; SAM M. THOMPSON, Judge

Action by Jake Rosenblum against Margaret E. Griffin. Judgment for Plaintiff, and Defendant brings error.

Affirmed.

For the plaintiff in error, the cause was submitted on the brief of Lee & Lee of Cheyenne, Wyoming.

Agencies cannot be inferred from mere relation or family ties unattended by conditions implying an agency. 2 C. J. 440.

Good v Arkin, 147 Ill.App. 390; Gore v. Canada L. Assur Co., 66 N.W. 570; Wade v. Boone, 168 S.W. 360; Whitten v. Kemp, 134 N.E. 211. The testimony of plaintiff was insufficient to show ratification by Mrs Griffin. 2 C. J. 474; Starcher v. Thompson, 152 N.W. 99; Haswell v. Standring, 132 N.W. 417. Plaintiff was a mere volunteer. Stevens v. Brimmer, 35 Wyo. 452, 463.

The mere acceptance of the benefits of the contract by defendant, even though she should have known that plaintiff expected to be paid, is not sufficient to bind her to pay. The case of Addison v. Wanamaker, referred to in the Brimmer case, seems to be conclusive of the question here involved. A sale by one who acts as agent for both parties is invalid. Fillmore v. U. P. R. R. Co., 2 Wyo. 94, 102; Evans v. Rockett, 32 Pa. Super Ct. 365; Sullivan v. Tufts, 89 N.E. 239; Dennison v. Gault, 11 S.W. 844; Mekarda v. Presberger, 107 N.Y.S. 897; Waters v. Rafalsky, 134 N. A. A.D. 870; Clopton v. Meeves, 133 P. 907. The following authorities establish the rule that the evidence here is insufficient to show that the plaintiff was the procuring cause of the sale of defendant's property, and therefore entitled to commission for his services, if we grant that he had any contract or connection with the sale whatever. Earp v. Cummins, 54 Pa. 394; Gleason v. Nelson, 162 Mass. 245; Hollyday v. Southern Agency, 100 Md. 294; Goff v. Hurst, 122 S.W. 148; Karr v. Brooks, 129 S.W. 160; Bidwell v. Haas, 121 N.Y.S. 211; Winthrop Land Co. v. Utley, 146 Iowa 310. One employing a broker to sell property bargains for the disinterested skill, diligence and zeal of the agent for his own exclusive benefit. 4 R. C. L. 274. No reply being filed, the allegations of the answer stand admitted. Kearney Stone Works v. McPherson, 5 Wyo. 178. We also direct the court's attention to the cases of Hatch Bros. Co. v. Black, 25 Wyo. 109, and Mapes v. Foster, 38 Wyo. 244, upon the point made by their assignment of error numbered seven. There is no evidence that Joe Griffin had authority to employ plaintiff. Raymond v. National Life Ins. Co., 40 Wyo. 1; Wyuta Cattle Co. v. Connell, 43 Wyo. 135. It must be shown that a party had full knowledge of the acts and conduct of a pretended agent before he can be held to have ratified the acts of such agent. Farmers State Bank of Riverton v. Haun, 30 Wyo. 322, 31 Wyo. 201.

The cause was submitted for the defendant in error upon the brief of Thomas Hunter of Cheyenne, Wyoming.

An agent may employ a sub-agent. 2 C. J. 685; Renwick v. Bancroft, 9 N.W. 367; McKinnan v. Vollmar, (Wisc.) 6 L. R. A. 121; Wright v. Isaacks, 95 S.W. 55; Springsteen v. Lewis, 259 F. 518. The question of ratification is one of law and fact. The evidence clearly shows that Mrs. Griffin authorized her son, Joe Griffin, to arrange for the sale of the property. After the sale was made by the agent selected by her son, she ratified it by accepting the benefits thereof. This amounted to ratification under the rule of law relating thereto. Mechem on Agency, 2d Ed. 404-405. Bank v. Haun, 30 Wyo. 322; Dewing v. Hutton 37 So. E. 671. Defendant is estopped by her acts and conduct to question the agency of Joe Griffin. Seeman v. Big Horn Canal Ass'n, 29 Wyo. 391; Roseberry v. Hart-Parr Co. 176 N.W. 175. Defendant's answer did not call for a reply. Iba v. Central Association, 5 Wyo. 355; 49 C. J. 326. The case of Stevens v. Brimmer, 35 Wyo. 452, cited by plaintiff in error may be readily distinguished on the facts from the case at bar. We believe that the facts and the law clearly show that defendant was bound by the acts of her son, Joe Griffin, and that the case narrows down to the issue as to whether or not he employed plaintiff to find a purchaser for the property, at a price to be fixed between himself and the purchaser. On this point, there is a conflict of testimony, upon which the court rendered judgment, thus presenting another instance for the application of the very salutary and well recognized rule of law that the findings and judgment of the trial court will not be disturbed, if supported by substantial testimony.

BLUME, Justice. KIMBALL, Ch. J., and RINER, J., concur.

OPINION

BLUME, Justice.

The plaintiff, Jake Rosenblum, sued the defendant, Margaret E. Griffin, for $ 1400 as a commission for finding a purchaser for the defendant's property in Cheyenne. The court gave judgment for the plaintiff and the defendant has appealed. The parties will herein be referred to as in the court below.

The testimony in the case is strangely conflicting and irreconcilable. The defendant, apparently an old lady not very well able to look after her own affairs, has a son, Joe Griffin, who, according to her testimony, transacted all of her business, except a few personal matters; that the sale of the property had been turned over to him, and that whatever "Joe says, that will be the law to the deal." She admitted that the plaintiff came to her house in January, 1930, to talk to her about the sale of the property, but she testified that he did not say anything about paying him for his services. The plaintiff, a licensed real estate dealer, testified that Joe Griffin, as early as 1929, employed him to find a purchaser for the property; that he had previously found a tenant for it; that he tried to induce several persons to buy it; that he went to the chancellor commander and the board of trustees of the lodge of Knights of Pythias; that negotiations were carried on by him and Joe Griffin with the board of trustees of this lodge for a long time; that in January, 1930, the board of trustees of the lodge wanted a written offer for sale; that he went to the defendant personally to get it; that she told him that she would submit an offer in writing and hand it to him through her son Joe; that this was done; that the negotiations finally, on a Friday in April, 1930, resulted in an agreement for the sale of the property to the lodge for the sum of $ 28,000; that he immediately thereafter went to the defendant's house and told her that he had sold the property; that she then stated that she was very happy, and "it is nice, this $ 28,000; I hoped to get $ 26,000, and the balance, I suppose, will go for commissions;" that the deal was not, however, closed on that day because defendant did not like to do so on a Friday. The agreement reached was completed and the property sold to the lodge about two weeks later. There is no dispute that on the Friday mentioned there were present Joe Griffin, the plaintiff and the three trustees for the lodge. Further, there is no doubt that the plaintiff interested himself in the sale of the property to the lodge, and one of the witnesses testified that "he was quite active in connection with this deal." It is shown that $ 1400 is a reasonable commission herein. The plaintiff was to some extent corroborated by his wife as to the authority given him by Joe Griffin to find a purchaser for the property in question. But the latter denied it. He admitted that the written offer above mentioned was submitted to the lodge through the plaintiff, but claimed that this was done because the chairman of the board of trustees was sick, and that he gave the offer to the plaintiff only because he understood that he, being a member of the lodge, would be present at its meeting that evening.

Defendant claims that the judgment is not sustained by sufficient evidence. We must, for the purpose of this decision, accept the testimony most favorable to plaintiff. Doing so, there can be no doubt that the plaintiff was not a mere volunteer and was employed to help find a purchaser for the property in question, at least by Joe Griffin. That is shown, we think, not only by plaintiff's testimony, but also by the circumstances in the case. But it is argued on behalf of defendant that Joe Griffin was but an agent; that ordinarily an agent cannot employ a subagent without the principal's consent; that there is no evidence in this case that Joe Griffin had authority to employ the plaintiff and that the evidence of ratification is insufficient; that Joe Griffin's authority cannot be implied from his relationship to defendant, and that at most the plaintiff was Joe Griffin's and not the defendant's agent. The rule undoubtedly is that an agent cannot, without the principal's consent, delegate powers which involve judgment or discretion. 2 C. J. 685; Mechem, Agency (2nd ed.), Sec. 306. And there are many authorities which hold that among the powers which ordinarily cannot be so delegated is the power to sell real estate. 2 C. J. 686 and cases cited; Mechem, supra, Sec. 308. Some of the cases in these citations involve the power of personal matters; that the sale of the property had the subagent to bind the principal, while others involve the question as to the right of the subagent to receive compensation from the principal. Where it is the usual custom of a trade or business to employ subagents, then the principal, in the absence of proof to the contrary, is presumed to consent that agents appointed by him may appoint subagents within the limits of such custom. 2 C. J. 690; Mechem, supra, Sec. 318. It is probably partially under this rule, and partially upon the principle of absence of judgment or discretion (Williams v....