Hammond v. Herbert Hood Co.
| Citation | 221 S.W.2d 98,31 Tenn.App. 683 |
| Parties | HAMMOND et ux. v. HERBERT HOOD CO. |
| Decision Date | 17 December 1948 |
| Court | Court of Appeals of Tennessee |
Certiorari Denied by Supreme Court May 6, 1949.
Appeal in Error from Chancery Court, Shelby County; L. D. Bejach Chancellor.
Suit by Herbert Hood, Sr., and Herbert Hood, Jr., composing a partnership under the firm name of Herbert Hood Company against James Thomas Hammond and wife, Beatrice R. Hammond to recover a real estate brokers' commission. From the judgment, defendants appeal in error.
Judgment reversed in part and affirmed in part.
Burch, Porter & Johnson, Memphis, for appellant.
Lake Hays, Memphis, for defendants.
This suit was instituted in the Chancery Court of Shelby County by Herbert Hood, Sr., and Herbert Hood, Jr., composing a partnership, engaged as real estate brokers or agents under the firm name of Herbert Hood Company, against defendants, James Thomas Hammond and wife, Beatrice R. Hammond, for a real estate commission alleged to have been lawfully earned by complainants by reason of services performed by them incident to the sale of certain real property of defendant, Mrs. Beatrice R. Hammond, same being a highly developed acreage in Shelby County and known as 'Mimosa'. The case was heard by the Chancellor with the intervention of a jury and resulted in a verdict on behalf of complainants and against both defendants in the amount sued for, namely $3375.00, and defendants appealed in error.
It was the contention of complainants in their bill and by their proof that the real estate involved was the property of defendant, Beatrice R. Hammond, while her husband, co-defendant, Colonel James Thomas Hammond, acting as the agent of his wife and in his own behalf, engaged complainants, as real estate brokers, to sell said property. That acting upon such employment that they vigorously engaged in an effort to effect a sale thereof, showing said property to different prospective buyers with defendants' consent and approval, and did as a result of such efforts find a purchaser who was acceptable to defendants, and was at the time, ready, able and willing to buy upon the agreed terms; although the sale was never consummated by reason of defendants' wrongful acts. Complainants charged that defendant, James Thomas Hammond, was the duly authorized agent of his wife, Beatrice R. Hammond, with full authority to bind her in the premises, and so held himself out with the knowledge and permission of his wife in such manner that both defendants were estopped to deny his agency; but that if defendant, James Thomas Hammond, was not duly authorized, or estopped to deny his authority, that such defendant would then be liable himself by reason of such misrepresentation of authority. It was further contended by complainant that James Thomas Hammond aside from binding his wife by reason of an agency also bound himself individually by an alleged personal agreement to pay a commission to complainants as brokers.
Defendants filed separate answers, each denying the employment of complainants for the sale of said property or any agreement to pay a commission for the sale of same. Mrs. Hammond, as owner, denied that her husband was authorized to offer for sale or sell said property, and Colonel Hammond denied that he had such authority from his wife and insisted that he had fully made known his wife's ownership of the property and only proposed and agreed with complainants that they might submit any offer which they might receive, and that he would pass on to his wife any such offer which he deemed agreeable as to price and terms. Defendants denied that they assented to or approved the showing of the property to prospective purchasers, and denied that a contract for the sale of the property had been entered into at the alleged price of $67,500.00 with one ready, able and willing to purchase and upon terms agreed upon, or agreeable to defendants. Defendant, James Thomas Hammond, admitted the receipt of an offer in such amount for the property but contended that the terms stipulated were not agreeable, and in at least one respect were impossible of performance.
Counsel for both complainants and defendants submitted proposed issues for consideration and decision by the jury. However, the Chancellor composed and submitted two questions for the jury's consideration and determination, the second to be ignored if the first were answered in the affirmative. The questions were as follows:
The jury answered the first question in the affirmative and as per instructions gave no answer to the second.
The record fairly discloses the following facts about which there is little dispute: Complainants approached defendant, James Thomas Hammond, about May 1947 concerning the sale of the real estate in question claiming to have a prospective purchaser at a figure greatly in excess of the figure later considered. This defendant manifested some interest in selling, and while this first prospect was immediately lost sight of, complainants pursued their effort to effect a sale, and were encouraged to some extent at least by the attitude and conduct of defendant, James Thomas Hammond. Title to the property was vested in defendant, Mrs. Beatrice R. Hammond and this fact was known or might have been known by reasonable inquiry upon the part of complainants. No exclusive listing was had by complainants and it appears that other brokers were likewise active in undertaking a sale. Upon one occasion defendant, Mrs. Hammond, was present when a prospect was shown the property by one of complainants and manifestly offered no objection.
Negotiations pertaining to the sale were carried on between complainant, Herbert Hood, Sr., and defendant, James Thomas Hammond. Neither a definite price nor terms appear to have been discussed at any time during the early negotiations, and the record fails to disclose that these matters were ever at any time mentioned to Mrs. Hammond.
In August 1947, after defendant, James Thomas Hammond, had gone to his ranch in Wyoming, and after the exchange of some correspondence in which the brokers manifested a much keener interest in effecting a sale than defendant, Complainant Hood mailed him a written offer on behalf of one Arthur Fulmer for the conveyance of certain other real estate owned by Fulmer and the sum of $40,000.00 cash in exchange for the described real estate, 'Mimosa'. To this offer said defendant made no immediate response, and shortly thereafter complainant called said defendant by phone to urge an acceptance, but to no avail.
Out of this latter conversation, however, a sharply controverted matter arose and one of importance to a determination of this controversy. Complainant Hood testified that a direct and positive offer to sell this real estate at the price of $67,500.00 cash was made by defendant Hammond, while the latter insisted that his mention of the figure of $67,500.00 was not a direct offer to sell at such figure, but a price which he would submit to his wife, provided satisfactory terms could be reached. Immediately thereafter said complainant with the approval of his prospect Fulmer sent the following wire:
.
Contemporaneously or following the sending of this telegram, there was mailed to said defendant Hammond's Wyoming address a contract for the conveyance of said property at the price of $67,500.00 executed by the said Arthur Fulmer, bearing date August 25, 1947, and providing, among other things, for $1000.00 earnest money and as payment upon the purchase price, stipulated that the taxes for the year 1947 were to be prorated; and further stipulated that the seller would promptly submit an abstract of title and allow fifteen days after delivery of abstract for the examination of title, and further provided that 'Possession of premises to be given with deed'. The trade was not consummated and shortly thereafter the property was exchanged for city property and cash and this suit resulted. Further facts will best appear in determining the issues presented.
The liability of defendant, James Thomas Hammond, will first be considered.
As heretofore stated, all, or essentially all transactions out of which this controversy arose were conducted on behalf of defendants solely by defendant, James Thomas Hammond. And in as much as the real estate involved was the property of Mrs. Hammond, then the liability of James Thomas Hammond, if any, must be necessarily predicated upon his relationship as agent for his wife, or upon some independent binding contract to pay complainant a commission for the sale of said property.
As heretofore observed, complainants alleged that he was acting in the capacity of agent for his wife. Furthermore, the one issue submitted to and considered by the jury was, 'Did the complainants under authority from defendant James Thomas Hammond, as agent for his wife, defendant Beatrice R. Hammond, produce a purchaser, etc.' This question was answered by the jury in the affirmative.
This being a law case, findings of the jury are binding upon this court, if there is evidence to support their verdict. Williams Code, Sec. 9037 and 10579; Johnson v Graves,...
To continue reading
Request your trial
-
H & M Enterprises Inc. v. Murray
...Ms. Murray's embezzlement. The law does not deem spouses to be each other's agent for all purposes. See Hammond v. Herbert Hood Co., 31 Tenn. App. 683, 691, 221 S.W.2d 98, 102 (1948). Accordingly, the marital relationship alone does not render one spouse liable for the other spouse's fraudu......