Kjerschow v. Daggs

• Decision Date: 28 June 1922
• Docket Number: Civil 1979
• Parties: H. KJERSCHOW and BIRGER LIE, Appellants, v. HUGH R. DAGGS, Appellee
• Court: Arizona Supreme Court

207 P. 1089

24 Ariz. 207

H. KJERSCHOW and BIRGER LIE, Appellants, v. HUGH R. DAGGS, Appellee

Civil No. 1979

Supreme Court of Arizona

June 28, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa. R. C. Stanford, Judge. Affirmed.

Mr. R E. Sloan, Mr. C. R. Holton and Mr. Greig Scott, for Appellants.

Messrs Hayes, Laney & Allee, for Appellee.

OPINION

ROSS, C. J.

This is an action by Hugh R. Daggs against Vic Hanny, as administrator of the estate of John Christy, deceased, H Kjerschow and Birger Lie, for a balance of $11,668.67 alleged to be due him upon a written contract for services in securing from the Gila Land & Cattle Company, a corporation, an agreement to sell and convey to said Christy 4,280 acres of land situated in Maricopa county and owned by the said corporation. The contract which is the foundation of plaintiff's action was dated January 21, 1920. On its face it was between Christy and plaintiff, and by its terms Christy obligated himself to pay Daggs $5 per acre if he would secure from the Gila Land & Cattle Company an agreement to sell and convey to him said 4,280 acres at $35 per acre. It is not questioned that plaintiff performed his part of the contract and earned his commissions. Christy died in April, 1920. The administrator of his estate did not contest plaintiff's claim, but admitted the liability. The other defendants, Kjerschow and Lie, against whom judgment was also entered, contested plaintiff's claim against them upon grounds that will be hereafter stated. The theory upon which the plaintiff bases his claim of liability against Kjerschow and Lie is that Christy, in entering into the agreement to pay plaintiff commissions for his services in procuring a contract of sale from the Gila Land & Cattle Company, was acting not only in his own behalf, but as the agent and representative of said defendants, the allegations of the complaint in that regard being as follows:

"That on the 21st day of January, 1920, the plaintiff entered into an agreement in writing with John Christy, acting for himself and as the agent and representative of the defendants H. Kjerschow and Birger Lie, whereby the plaintiff agreed to procure from the Gila Land & Cattle Company, a corporation, a contract and agreement to sell and convey to the said Christy the said company's real estate and lands situate in the county of Maricopa, state of Arizona, comprising 4,208 acres, for a consideration and purchase price to be paid to said company of $35 per acre, or a total consideration to be paid to said company of $149,800, said purchase price to be paid in the following sums and at the following times, to wit: Ten thousand dollars on the 1st day of February, 1920, and the balance of said purchase price on the 1st day of April, 1920 -- the said Christy agreeing with the plaintiff that, immediately upon the delivery by the said company to the said Christy of good and sufficient deeds of conveyance of said real estate, the said Christy, acting in that behalf for himself and as the agent and representative of the defendants H. Kjerschow and Birger Lie, would pay to the plaintiff the sum of five dollars for each and every acre of land so conveyed."

The defendants Kjerschow and Lie demurred generally, and denied the allegations of the complaint, and particularly that John Christy in entering into the contract set forth in the complaint was "acting as the agent and representative of said defendants." It appears from the complaint and the answer that the deal was consummated by the defendants and others associated with them, instead of taking a conveyance of the lands, purchasing all the outstanding stock of the Gila Land & Cattle Company at a price, as defendants allege in their answer, equal to $40 per acre for the lands owned by the company. It is further alleged by defendants Kjerschow and Lie that at the time they became purchasers of stock of the Gila Land & Cattle Company they did not know nor had any information that plaintiff was entitled to receive by virtue of any agreement with Christy, the equivalent of $5 per acre for said land, and that, if anybody owed plaintiff anything, it was Christy in his lifetime, and, since his death, his estate. The form of the verdict was:

"We, the jury duly impaneled and sworn in the above-entitled action, upon our oaths do find for the plaintiff against the defendants."

Upon this verdict the court entered judgment against the defendants Kjerschow and Lie for the sum of $11,668.67, with interest at the rate of six per cent per annum from April 1, 1920. Defendants objected to the entering of judgment upon said verdict upon the ground that the verdict failed to find the amount of recovery. The appeal is from the order overruling the motion for a new trial and from the judgment.

It is first contended by defendants that the complaint does not state facts sufficient to constitute a cause of action against them, and that the court erred in overruling their general demurrer. It is claimed that the allegation that John Christy, "acting for himself and as the agent and representative of the defendants" Kjerschow and Lie in making said contract, falls short of being an allegation that he had authority from said defendants to enter into said contract for them, an essential fact to be shown. We are cited to no pertinent authority sustaining this view. On the contrary, the rule seems to be that --

"Where agency is alleged, a general allegation is sufficient, without averring that the agent had authority to act in the premises, that being regarded as an averment of a conclusion of law, or at best an unnecessary repetition of a fact already stated." 2 C. J. 906, § 611.

It is said the complaint, for another reason, is insufficient in that it fails to allege that Christy had written authority to enter into said contract in their behalf from defendants Kjerschow and Lie. This, it is contended, is necessary under subdivision 7, paragraph 3272, Civil Code, which provides that no party shall be sued upon "an agreement authorizing or employing an agent or broker to purchase or sell real estate, mines, or other property for compensation or a commission," unless the same be signed by him, "or by some person by him thereunto lawfully authorized." The contract in this case is in writing and signed by Christy in his own behalf and as agent and representative of the other defendants if the allegations to that effect are to be believed. This court in Murphey v. Brown, 12 Ariz. 268-275, 100 P. 801, ruled against defendants' contention, in construing subdivision 4 of paragraph 2696, Civil Code of 1901, practically the same as subdivision 7 of paragraph 3272, Civil Code of 1913, stating:

"That one shall be 'lawfully authorized' to sign a binding memorandum under section 4 of the statute of frauds does not mean that he must have been authorized in writing; he may have been verbally authorized, although to execute the conveyance he must have been authorized in writing."

Daggs' employment was not to convey the lands in question, but to secure an agreement from the owner to sell and convey. So we conclude that the complaint stated a cause of action against the defendants, Kjerschow and Lie.

The next assignment of error is as follows:

"The court erred during the trial in permitting, over the objection of the defendants Kjerschow and Lie, the witness Desmond Christy to testify to a conversation between the defendant Birger Lie and John Christy relative to business relations existing between said Lie and said Christy on November 18, 1919, for the reason that it related to other matters than that set forth in plaintiff's complaint and did not prove or tend to prove the allegations of said complaint, and for the further reason that the witness stated that the substance of the conversation was as to matters fully disclosed by an instrument in writing which had been offered in evidence by plaintiff and refused by the court upon the ground that it did not relate to the transactions set forth in the complaint, and the evidence was too remote, and therefore incompetent."

We think it necessary, in order to understand the above assignment, to make a statement of some of the facts not in dispute, and then the evidence toward which the assignment is directed. The defendants Kjerschow and Lie (brothers-in-law) during the time of this deal, and before, were residents of Christiana, Norway, and John Christy resided at Clifton Arizona. Prior to September, 1919, these three parties became interested together in the acquisition of mines and mining claims and timber lands and cattle in Greenlee and Apache counties, Arizona, and in Grant county, New Mexico. Christyhs contribution to the enterprise consisted in finding desirable properties, and Kjerschow and Lie were to, and did, furnish the money to pay for the properties. Christy had authority to acquire all such property in his own name, in trust for all, and they were to be equal owners thereof; that is, each was to have one-third of all property acquired and of the rents, issues, profits, interests, and accruements thereof, and to bear expenses and losses equally. This arrangement, so far as the record shows, was originally verbal, but on September 20, 1919, it was reduced to writing in a paper designated a "declaration of trust" signed by Christy, Kjerschow and Lie. This instrument was offered by plaintiff as evidence tending to show the relation that Christy sustained to the other defendants and as tending to show the course of dealing between them from which Christy's agency to make contract with Daggs might be inferred, but upon objection of defendants that it was concerning other transactions, and therefore immaterial, the court rejected it....