Hillyard v. Banchor

• Decision Date: 07 October 1911
• Docket Number: 17,214
• Citation: 85 Kan. 516,118 P. 67
• Parties: J. L. HILLYARD, Appellee, v. FRANKLIN BANCHOR, Appellant
• Court: Kansas Supreme Court

118 P. 67

85 Kan. 516

J. L. HILLYARD, Appellee, v. FRANKLIN BANCHOR, Appellant

No. 17,214

Supreme Court of Kansas

October 7, 1911

Decided July, 1911.

Appeal from Kearny district court.

STATEMENT

This action is to recover commissions claimed by the plaintiff Hillyard, a real-estate agent and broker at Lakin, Kan., from Banchor, the defendant, landowner, of Boston, Mass., and also the amount of a payment advanced upon the contract for the purchaser, whose claim, if any, had been assigned to the plaintiff. Judgment was rendered for the amount of the advance payment, but the claim for commissions was not allowed. Both parties appealed.

Under date of October 19, 1907, soon after the land had been listed with the plaintiff, he concluded a written contract with F M. White, purporting to sell it for $ 1500, $ 100 to be paid at once, $ 900 on delivery of deed and abstract showing good title and $ 500 in four years to be secured by mortgage on the land. The contract was between "J. L. Hillyard agent," and White, as vendee. Without informing the defendant of this contract the plaintiff two days afterward mailed a letter to him, as follows:

"When you was here a short time ago you listed for sale a tract of land consisting of 78 a. near Hartland being lot 8 except 5 a. in the S. E. corner and 20 a. of the east side of lot 7 in sec. 15, T. 25, R. 37, for which you wanted $ 1100 offering terms on one-half. I can sell this on the following terms: $ 100 down, $ 500 upon rec't of deed and $ 500 in four yrs. at 6 % int. with the privilege of paying $ 100 or any multiple thereof at any time, this seems to me like a very fair offer as to terms, this man is willing to pay me for my trouble in getting this deal closed so it will make you your price net to you, please let me know at once whether you will approve of these terms as I am anxious to get my client some land."

Considerable correspondence followed, the material parts of which are given below, with dates. Letters sent by the plaintiff are designated P., those by the defendant D.

(D. Oct. 24.) "Yours of the 21st inst. at hand and I accept your offer of $ 1100 net me, $ 100 down, $ 500 on receipt of deed and $ 500 in four years at 6 % with privilege of paying $ 100 or any multiple thereof, at any time, for my property . . . provided New York draft for $ 100 to my order, is sent immediately; purchaser to assume 1907 tax; 6 % interest to be payable semi-annually. . . . (Refers to telegram of acceptance.) . . . Please state in whose name to make deed, also names (wife's name) of parties to execute mortgage."

(P. Oct. 28.) "With this letter you will find enclosed a draft for $ 100 earnest money, as to the deed I do not know how my client wants it made or what his wife's name is but will find out as soon as possible and let you know, would like for you to send deed and mtg. to some bank here so it will be here so that I can look after getting it fixed up."

(D. Oct. 29.) "Please inform me immediately, name of grantee and full names (wife's name) and address of parties who are to sign note and mortgage. I am having papers prepared."

(D. Nov. 1.) (Acknowledges receipt of $ 100 from plaintiff.) "I wish you had given me the names of grantee and his wife. However, I have left these in blank and would like you to see that same are properly filled--in the deed, mortgage and note. . . . I have this day sent papers to the Kearny County Bank, D. H. Browne, Cash., of Lakin, Kan., which must be taken up on or before the 11th inst., or papers returned to me on that date.

"I never convey by any other form than under quitclaim deed, which is executed by myself and wife. If this deed is not accepted, the deal is off."

(P. Nov. 4.) "Your favor of Nov. 1 just rec'd in which you state you want to make a quitclaim deed. I don't know what my client will do about that but I will however do what I can to get him to take it, as to this being closed up by the 11th of this mo., I don't believe we can possibly get it around in that time. . . ."

(D. Nov. 8.) "I do not see why you have any doubt as to your client accepting quitclaim deed. He should not have any fear; the title is clear, as your attorney will learn upon investigation. I never convey by any other form than quitclaim deed. . . . I have instructed the bank to give you until the 20th inst. to close the deal."

(D. Nov. 26.) "As I gave you until the 20th inst. to close up the deal and not having received remittance from the Kearny County Bank, I have this day notified said bank that unless a good and sufficient reason is given for the delay, to return to me immediately, all papers and draft for $ 100 plus the cost of protesting, same being forfeited.

"This matter should receive your immediate attention."

(P. Nov. 28.) "Your title to the land that I have been trying to sell failed to pass. I tried hard to get them to take it but failed, so I told Mr. Browne to send you all the papers. I have been out considerable in expense and time in showing this land not knowing that the title was in such a shape. . . . Please send the draft back that I sent you."

(D. Dec. 3.) "I note your excuse on account of not completing the deal is that the 'title is bad.' The title to this property is perfectly clear in the writer. I had the same perfected some years ago through the office of Geo. J. Downer of Syracuse, Kan., who pronounces the title clear in the writer. . . . What are the defects in the title? Please enumerate same. Also what is the name and address of the lawyer who examined the title? I have a right to know. Sale is now off."

(P. Dec. 12.) "In ans. to your letter of Dec. 2 will say that I do not know the name of the attorney or examiner that examined the title for my client, after it had been turned down by my client I thought as the deal had gone so far that I would take it up myself if you had any title. I had attorney A. R. Hetzer of Lakin, Kan., to examine it for me and he advised me that the title was n't safe to handle, there seems to be some old mortgage that has never been released, my attorney is out of town at present. If you wish I will have him send you a statement of the requirements when he returns, and if you can meet these I will still buy this land, please send the draft back at once."

(D. Dec. 20.) "You do not make a satisfactory explanation in claiming that my title is not clear. . . . You should obtain and send to me from your attorney who examined the title, statements of what is required. It is up to you to do this, otherwise you are making a lame excuse."

(P. Dec. 24.) "I have your letter of the 20th inst., my attorney whom I referred to is away at present taking a holiday vacation, am expecting him home the 27th of this mo. at that time I will take the matter up with him in regard to the abstract of the Platter land, and ask him to send you the requirements which he still has in his office perhaps. . . . As you seem to think you had a good title or did not know the condition of the title there is perhaps no one to blame."

(D. Dec. 28.) "I note what you say in that 'No one to blame' on account of sale falling through.

"My price now is $ 1600 less 5 per cent commission. I have recently paid 1907 tax."

(P. Jan. 21.) "As I have not rec'd the $ 100 from you will take the liberty to write you once more in regard to it. . . . Hoping to get a draft from you on return mail. . . . I am."

(D. Jan. 24.) "You know full well that you have forfeited this money. I gave you more than customary time to complete the deal and at the last moment you declared that the title was defective, leaving me in the 'lurch.' . . . I have a letter from Messrs. Hetzer & Trinkle, of Lakin, alleging that three old mortgages not released. I am satisfied that these mortgages were cut out by foreclosure; and what is more, I subsequently quieted the same through the district court of Kearny, and some years ago, Mr. Geo. J. Downer of Syracuse, pronounced the title perfect in the writer. . . . I have sent the abstract and all old papers to the Hon. Wm. E. Hutchison of Garden City, who will pass on the title."

(Before receiving this letter the defendant had received a letter from plaintiff's attorneys stating their objections to the title.)

(P. Feb. 26.) "I received your letter some two or three weeks ago, stating that you had sent the abstract to the land in question to Garden City and you insinuated that you would report the decision. I don't know that this decision makes any difference to me whatever. I still claim that you have $ 100 of my money."

(D. March 2.) "As I have written you before, you have forfeited this money and during the pendency of sale to you, I was prevented from selling the property to another party who was ready to pay all cash . . . and I respectfully refer you to Hon. Wm. E. Hutchison of Garden City, who has all papers."

The plaintiff testified that White refused to take the land after examining the abstract on the ground that the title was defective. Mr. White testified that he executed the agreement to buy the land and sent a draft to the Lakin State Bank for the advance payment, payable to the order of the plaintiff, to be delivered if the title was good, but the draft was returned to him, as he directed, on being advised that the title was bad. The plaintiff sent another draft for the $ 100, which the defendant received and kept. The name of the vendee, who is referred to by the plaintiff in his letters as "my client," was never made known to the defendant.

Judgment modified and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

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