Hampton v. Moorhead
| Decision Date | 19 October 1883 |
| Citation | 17 N.W. 202,62 Iowa 91 |
| Parties | HAMPTON v. MOORHEAD |
| Court | Iowa Supreme Court |
Appeal from Henry District Court.
ACTION in equity for specific performance and for general relief. The plaintiff avers that he purchased of the defendant Thomas L. Moorhead, through his attorney in fact, J. W Moorhead, certain land in Henry county, for the agreed price of $ 4,750, and paid $ 4,500, and was to pay the "balance when a deed should be delivered; that he has offered to pay the balance and has demanded a deed, but that the defendant has refused to execute it."
The defendant for answer denies that he ever sold the land to the plaintiff, or any part thereof, and denies that he ever received anything from the plaintiff for said land. Before the trial, the defendant died, and his sole heir, Eliza Moorhead, and his administrator, J. A. Moorhead, were substituted. Upon the trial the court found that the plaintiff purchased the land as alleged, and paid $ 2,000 in cash, and made an assignment of a certain patent right. The court refused, under the peculiar circumstances shown, to decree a specific performance, but decreed that the amount paid should be made a lien upon the land, and that the patent right should be reassigned. The defendants appeal.
REVERSED.
Amblers & Campbell, for appellants.
Woolson & Babb, for appellee.
There is some evidence tending to show that the power of attorney, by virtue of which the sale is alleged to have been made, was forged, but we do not deem it necessary to determine what the fact was. For the purposes of the opinion it may be conceded that the power of attorney was not forged. But, conceding such fact, we are not able to see how, under the plaintiff's own testimony, the sale can be sustained. While it appears clearly enough that the plaintiff paid $ 2,000 in cash, as the court found, yet it was paid only to J. W. Moorhead, and did not, we think, under the circumstances, as shown by the undisputed evidence, become a payment to Thomas L. Moorhead. There is no pretense that any part of the money actually came into Thomas L. Moorhead's hands. This, to be sure, would not have been necessary to constitute a payment to Thomas L., if J. W. had received the money while acting within the scope of his power. But the undisputed evidence shows that he did not thus act. J. W. Moorhead's power was to make a sale. What he undertook to do was to make an exchange, at least so far as the transaction in part was concerned. He took a patent right as a part of the consideration for the land.
The language of the power of attorney is not very accurate, but there is no question as to what it means. After describing the land, it sets out the power conferred in these words: "To make sale of the same or any part thereof for such sum or price, and on such terms, as to him (the said attorney) shall seem meet, and to ask, demand, recover and receive all sums of money which shall become due and owing to me by means of such sale or sales, and to take all lawful means for recovery thereof," etc. Under this power, the attorney was authorized to make a sale, and only that. A sale is defined to be "an agreement by which one of two contracting parties, called the seller, gives the thing and passes the title to it for a certain price in current money." Bouvier's Law Dict. It differs from an exchange, where the consideration is paid in property other than money. In Parsons on Cont., Vol. 1, p. 520, it is said: "A sale is distinctly discriminated in many respects from an exchange in law; an exchange being the giving of one thing and receiving of another thing, while a sale is the giving of one thing for that which is a representation of all values." See, also, Vail v. Strong, 10 Vt. 457. When, therefore, J. W. Moorhead undertook to take a patent right in part consideration, he undertook to take what he had no authority to do, and the plaintiff should have known it. The trade was, therefore, void. It differed in no respect from what it would have been if there had been no power of attorney. There being no sale, the money received could not be regarded as received in pursuance of a sale, and, it not coming actually into Thomas L. Moorhead's hands, he was not affected by the receipt of it by J. W. Moorhead. We think, then, that the court erred in charging the land with a lien for this money. The plaintiff, however, contends that, whatever may be the merits of the case, we cannot reverse, for want of a proper record.
It is not necessary to determine whether the case is triable de novo to enable us to review the question above determined. The action was brought in 1878, and while the provision was in force for trying equitable actions upon oral evidence. There is...
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