Kempner v. Gans
| Decision Date | 15 June 1908 |
| Citation | 111 S.W. 1123,87 Ark. 221 |
| Parties | KEMPNER v. GANS |
| Court | Arkansas Supreme Court |
Appeal from Pulaski Chancery Court; Jesse C. Hart, Chancellor reversed.
STATEMENT BY THE COURT.
Gus. M Gans and Sol Gans owned the land in controversy, which was business property on Second Street in the city of Little Rock, having a frontage of 70 feet and running back 75 feet containing a two-story building numbered 207, 209 and 211 West Second Street. They authorized Raleigh & Morris, real estate agents, to sell the same, which was evidenced by the following writing:
Size of Lot--70 x 70 feet.
Rents....
No. Rooms....
No. Stories....
City Water....
Sewerage....
Bath Room....
Price $ 35,000.00.
[Signature] "Gus and Sol Gans, Owner.
There was uncontradicted evidence showing that it was always customary for the seller to furnish an abstract of title brought down to date. After the sale Sol Gans was notified of it, and asked what rate of interest he would charge on the purchase price above $ 10,000.00, and he said he wanted seven per cent. The broker wanted him to make it six, and Gans told him he would talk with his brother about it, and for the broker to come back in the afternoon. After the conference of the brothers they notified the broker that they had decided not to sell the property. Gans told Kempner that they had changed their minds. Kempner tendered Gans $ 35,500 in currency, which tender was refused, and this suit was then brought for specific performance, and the chancellor found for the defendants. Kempner has appealed.
Reversed and remanded.
Morris M. Cohn and Rose, Hemingway, Cantrell & Loughborough, for appellant.
1. Appellant rigidly complied with the contract; but, if there had been some slight omission in the matter of making the tender or in any other matter within his power to remedy, objection should have been raised. Appellees having placed their refusal to perform solely on the ground that they had changed their minds and did not wish to sell, they waived all objections that could have been remedied by the appellant. 74 App.Div. (N.Y.) 517; 128 N.Y. 253; 150 F. 458; 4 Ark. 251; 13 Ark. 437; 68 Ark. 505; 45 Ark. 37. Power of attorney to sell land authorizes the execution of a contract to sell. 34 Minn. 330; 90 Ill. 444; 86 Mo. 178; 33 Cal. 202; 21 Ark. 533; 51 Ark. 483; 17 Am. Dec. 59, note; 1 Dembitz, Land Titles, 408-9; Mechem, Agency, § 321; 50 Am. Dec. 688; 35 Minn. 52; 40 N.Y. 363; 18 N.J.Eq. 401; 63 Mo. 256; 17 Ill. 433; 24 Mo. 98; 22 Pick. 75. Under a statute of frauds like ours, no writing is necessary to authorize an agent to make a contract for the sale of land. A writing is only necessary to make a conveyance. 74 Ark. 395; Browne, Statute of Frauds, § 12; 17 Ill. 433; 31 Ala. 175; 85 Ill. 263; 87 P. 361; Kirby's Digest, § 3665. The contract is sufficient under the statute of frauds. Where a contract provides the means of making its provisions certain, the fact that they are not set out with certainty in it does not defeat the right to specific performance. Pomeroy on Contracts, § 148. Where an agreement is framed in general terms, the law will supply the details. Fry on Specific Performance, §§ 221, 225; Waterman on Specific Performance, § 250. When the terms of a contract are uncertain with respect only to such terms as the law implies, specific performance will be decreed. 64 N.E. 880. Unless the appellees saw fit to provide other terms than those named in the contract, the law would imply an agreement to pay all cash. 23 N.J.Eq. 32; 23 N.J.Eq. 536. See, also, 40 So. 757; 70 P. 809; 86 P. 726; 80 Ark. 209; 60 N.E. 732; 48 A. 774; 48 A. 1113.
2. The provision that the terms of paying the balance, $ 25,000, should be left to the vendors was inserted for their benefit, and they waived their right to insist upon it when they failed to fix the terms and to carry out the contract accordingly. Fry on Specific Performance, § 224.
Ratcliffe, Fletcher & Ratcliffe, and Moore, Smith, & Moore, for appellees.
1. A contract must be complete and certain in all its material parts to entitle either party to specific performance. The best guide to its interpretation, where its meaning is in doubt, is what the parties did toward the execution of it. 55 Ark. 416; 14 A. 26; 55 A. 628; 5 C. E. Green (N. J.) 55; 7 Id. 63; 12 P. 453; 3 Page on Contracts, § 1609; Fry on Spec. Perf. § 203; Id. § 264; Pomeroy on Spec. Perf. §§ 145, 159; 44 Ark. 340; 33 N.J.Eq. 651; 3 Ves. 420; 1 McCarter (N. J. Eq.) 17; 5 Munf. 396; 58 Mo. 242. Under appellant's contention, the contract is fatally defective under the statute of frauds, which requires that it shall be in writing. If any material part necessary to determine the rights and obligations of the parties is omitted from the writing, equity will not enforce specific performance. Fry on Spec. Perf. §§ 341-2; Waterman on Spec. Perf. § 234. Greater certainty is required for specific performance than to maintain an action at law. Fry on Spec. Perf. § 229; 26 Am. Dec. 662-4, note 8. Under the statute of this State the authority of an agent to sell land must be in writing. Mechem on Agency, § 89, note 2; Wood on Stat. Frauds, § 16 and note 1, page 45; Kirby's Digest, § § 3664, 753. 9 Vesey, 605, is not in point. In that case there was a valid contract, and, one party having become incapacitated by reason of insanity, the court held that this incapacity could not deprive the other party of its benefits; but here there was no contract, for want of that completeness and certainty essential in cases of this kind. See also 14 Ves. 400; 17 Id. 232; 1 V. & B. 68; 2 Sim. & St. 418; 17 Eng. Law & Eq. 203; 1 Wash. 374; 6 Munf. 212; 6 Har. & J. 490; Fry on Spec. Perf. § 218; 12 Ves. 106; 3 Mer. 507; 2 R. I. 46; 4 Id. 285.
2. The contract is void for uncertainty in description of the property. "Unless the terms of the contract can be determined from the contract itself, it is within the statute of frauds, and the defect can not be supplied by parol proof." 21 Utah 115; 59 P. 758; 14 Okla. 674; 11 L.R.A. 97; 5 Cold. (Tenn.) 616; 14 N.J.Eq. 13; 27 Md. 334; 21 Ark. 533; 2 Devlin on Deeds, §§ 1010-11.
3. The agents exceeded their authority. Giving authority to an agent to sell a plot of ground of specified dimensions does not authorize him to sell a greater area. Moreover, where the writing under which the agent claims to act contemplates a sale for cash, he exceeds his authority in making a sale on credit. Mechem on Agency, § 325; 1 Am. & Eng. Enc. of L. 1003, 1009; 5 Heisk. 553; 23 Ark. 411; 51 Ark. 483. They exceeded their authority in contracting to furnish abstract of title. Nothing in the contract authorizes it, and it is not shown that appellees had knowledge, or occupied a position that would render them chargeable with notice, of any custom to furnish such abstract. 50 Barb. 62; 1 Hun, 217; 30 N.Y. 160; 10 Wall. 390; 15 Wall. 579; 15 P. 905; 6 A. 592.
Rose, Hemingway, Cantrell & Loughborough, and Morris M. Cohn, for appellant in reply.
If an instrument contains sufficient description to identify the property, parol evidence is admissible to clear away any latent ambiguities. 70 Ark. 355; 64 Ark. 240; 40 Ark. 237; 30 Ark. 513; 28 Ark. 282; Id. 146. This applies to memoranda of sale. 45 Ark. 28; 26 Am. Dec. 662, note. Where a deed to a town lot gives the area incorrectly, it will be construed to ambrace the proper area. 64 Ark. 240. A deed will not be held to be void for uncertainty if by any reasonable construction it can be made available. 68 Ark. 544. It is to be construed according to the intention of the parties as manifested by the entire instrument, although such construction may not comport with the language of a particular part of it. 64 Ark. 240. See also 136 U.S. 68; 1 Peters 640; 21 Miss. (13 S. & M.) 388; 71 Miss. 487; 17 Colo. 24; 3 Ind. 316; 53 N.J.Eq. 588. The statutes do not require the authority of an attorney or agent to contract for a sale of land to be in writing. Sections 753 and 3664, Kirby's Digest, cited by appellees, refer to leases or conveyances, and not to contracts to convey. For distinction see 74 Ark. 397; Browne on Stat. Frauds, § 12. A contract for work, etc., to the satisfaction of a party means performance in such manner that the other party ought to be satisfied. 165 Ill. 544; 149 Mass. 284; 116 N.Y. 230; 108 Ind. 202; 18 N.Y.S. 164; 36 Id. 443; 14 Ore. 3; 19 Wis. 438. An agreement to pay a certain sum in a manner acceptable to a party is performed by a payment which that party is legally bound to accept. 19 Wis. 438.
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