John L. Rowan & Co. v. Hull

• Decision Date: 15 March 1904
• Citation: 47 S.E. 92,55 W.Va. 335
• Parties: JOHN L. ROWAN & CO. v. HULL.
• Court: West Virginia Supreme Court

47 S.E. 92

55 W.Va. 335

JOHN L. ROWAN & CO. v. HULL.

Supreme Court of Appeals of West Virginia.

March 15, 1904

Submitted February 17, 1904

Syllabus by the Court.

1. Mere commission or reward to be earned by an agent in executing the agency does not, alone, make the agency one coupled with an interest.

2. An agency uncoupled with an interest, and not for a fixed time may be revoked by the principal at will, without liability for damages; and, though it be for a fixed time, still it may be revoked at will, but the principal will be liable to the agent for damages for wrongful revocation within such time. There is often a difference between a power to revoke and a right to revoke, as between principal and agent.

3. A written proposition to employ one as agent to sell land signed by the proposer, accepted by the agent, though not signed by him, makes a binding contract of agency between them, and is a bilateral mutual contract, and enforceable against both.

4. A promise of remuneration for service to be performed makes a valid consideration for a contract. If one employ another as agent for remuneration on performance, the contract is based on sufficient consideration, and is mutually binding.

5. Benefit to be derived by each party to a contract furnishes a sufficient consideration for it.

6. It is for the court to determine whether there is evidence to render an instruction relevant. An instruction cannot be given, and its consideration by the jury made to depend upon whether the jury finds that there is or is not such evidence.

Error to Circuit Court, Monroe County; J. M. McWhorter, Judge.

Action by John L. Rowan & Co. against J. W. Hull. From a judgment of the circuit court affirming a judgment for plaintiffs on appeal from a justice, defendant brings error. Affirmed.

John Osborner and J. D. Logan, for plaintiff in error.

Rowan & Boggess, R. E. L. Clarke, and J. A. Meadows, for defendants in error.

BRANNON J.

In the circuit court of Monroe county, in an appeal from a justice John L. Rowan & Co. recovered against J. W. Hull a verdict and judgment for $137.50, and from this judgment Hull has brought a writ of error. The claim of Rowan & Co. is that Hull engaged them to sell for him a tract of land, and that they undertook the service, and made effort to sell to several persons; that they interested John C. Ballard in the land, and sent him to see it, but Hull informed Ballard that he had concluded not to sell, and had revoked the power of Rowan & Co. to sell. Ballard then went to Rowan & Co., and they exhibited to him the written memorandum empowering them to sell, and convinced him that they still had power to sell under it, notwithstanding the revocation of their authority to sell; and then Ballard made a writing addressed to Rowan & Co., saying that he would give them $5,500 for the Hull farm. Before Ballard went to see the land, Hull wrote Rowan & Co., on the 12th of August, that he had concluded not to sell his farm. The memorandum putting the land in the hands of Rowan & Co. for sale is as follows "300 acres in Sweet Spring Dist. near Gap Mills--good dwelling, fine barn and other buildings--fine orchard, well watered with running water--well timbered--one of the nicest farms in Monroe. Price $5,500. Terms easy. 5 per cent. to John L. Rowan & Co. Land to be exclusive with them 3 months and until withdrawn. This August 5th, 1902, J. W. Hull." On 5th of January, 1903, Rowan & Co. sued Hull for compensation for their service under said agreement. Hull contends that the paper given by him conferred on Rowan & Co. a naked power to sell, uncoupled with an interest, and that it was revocable at any moment he might choose to revoke it, and that, when he revoked it before sale, Rowan & Co. could not recover the agreed commission, but only, at most, compensation for what they actually did, if anything, under the power. Hull would reverse the judgment on the strength of his revocation of the authority of Rowan & Co. to sell. The summons not being before us, and no pleading to show whether Rowan & Co. claimed 5 per cent. on $5,500, or merely actual compensation for trouble as agents, we cannot say, by the record, which character of claim was made, but we assume that it was for commission. What is the effect of the revocation before Rowan & Co. found a purchaser? We have the question strictly as between those parties, not the rights of Ballard. This power was naked, coupled with no interest, as the commission to be earned is not an interest rendering the power irrevocable. 1 Am. & Eng. Ency. L. (2d Ed.) 1217; Mechem on Agency, § 207. The same book (section 209) says: "Power to Revoke--How Distinguished from the right to revoke. Where the authority is not coupled with an interest, the principal has power to revoke at his will at any time. But this power to revoke is not to be confounded with the right to revoke. Much uncertainty has crept into text-books and decisions from a failure to discriminate clearly between them. Except in those cases where the authority is coupled with an interest, the law compels no man to employ another against his will. The relation of agent to his principal is founded, in greater or less degree, upon trust and confidence. It is essentially a personal relation. *** It is the rule of law that contracts of agency, like those creating other personal relations, will not be specifically enforced. Nor does it make any difference, in this view, that the principal has expressly agreed that he will continue to confide in the agent for a definite period. It is no less difficult, on that account, to coerce compliance. *** The law therefore leaves the principal in such cases to determine for himself how long the relation shall continue. This, then, is what it meant when it is said that the principal may revoke the authority at any time. But it by no means follows that, though possessing this power, the principal has a right to exercise it without liability, regardless of his contract in the matter. It is entirely consistent with the existence of the power that the principal may agree that for a definite period he will not exercise it, and for the violation of such agreement the principal is as much liable as for the breach of any other contract. It is in this view, therefore, that the question of the right to revoke arises." Section 210: "When the Right to Revoke Exists. When no express or implied agreement exists that the agent shall be retained for a definite time, the power and the right of revocation coincide. Such employments are deemed to be at will, merely, and may be terminated at any time by either party without violating contract obligations or incurring liability. The law presumes that all general employments are thus at will, merely, and the burden of proving employment for a definite time rests upon him who alleges it." Also section 620. To like effect, see Reinhard on Agency, § § 159, 161; 1 Am. & Eng. Ency. L. 1216. Thus Rowan & Co. had a right of action for the breach of the contract in the revocation of their power within the period of three months. Authorities cited for Hull do not oppose this position, except Simpson v. Carson, 11 Or. 361--a case not well reasoned. Hunt v. Rousmanier, 8 Wheat. 174, 5 L.Ed. 589, was a power coupled with an interest--a power to sell and pay the agent a debt--and it was...