Larson v. O'Hara, 14,697 - (74)

• Court: Supreme Court of Minnesota (US)
• Writing for the Court: ELLIOTT, J.
• Citation: 107 N.W. 821,98 Minn. 71
• Parties: HANS LARSON v. MARY J. O'HARA
• Docket Number: 14,697 - (74)
• Decision Date: 11 May 1906

107 N.W. 821

98 Minn. 71

HANS LARSON
v.
MARY J. O'HARA

Nos. 14,697 - (74)

Supreme Court of Minnesota

May 11, 1906

Appeal by defendant from an order of the district court for Polk county, Watts, J., denying a motion for judgment notwithstanding the verdict or for a new trial, after a trial and verdict in favor of plaintiff for $150. Affirmed.

SYLLABUS

Real-Estate Broker.

A real-estate broker who is employed to find a purchaser for land, or with whom land is listed for sale at a specified price, has no implied authority to execute a contract of sale.

Earnest Money.

Where a contract to convey land is unenforceable, and the owner refuses to convey, earnest money paid on such contract may be recovered.

Evidence.

The evidence in this case examined, and held to sustain the verdict.

Ray G. Farrington, for appellant.

H. W. Stark and W. E. Rowe, for respondent.

OPINION

ELLIOTT, J.

This action was brought to compel specific performance of a contract to convey real estate and to recover damages alleged to have been caused by the defendant's failure and refusal to carry out and perform her agreement to convey. As the case was tried, the action was treated by all parties as one for damages. It appears to have been tried by the court and a jury without objection. At the close of the evidence the court directed a verdict for the plaintiff, and the defendant appeals from an order denying her motion for a judgment in her favor notwithstanding the verdict, or for a new trial.

The first and second assignments of error cannot be considered. No exceptions were taken to the rulings of the court, and no errors were assigned in the motion for a new trial. By a liberal construction [98 Minn. 72] of the other assignment we are enabled to determine whether the evidence is sufficient to support the verdict.

Prior to March 7, 1905, the appellant, Mary J. O'Hara, was the owner of eighty acres of land situated near Crookston. The Odett & Ball Land Company was a partnership engaged in business as real-estate brokers. On November 26, 1904, Mrs. O'Hara wrote to these parties, stating that she would accept $3,800 net cash for the land in question, provided they could sell it by January 1, 1905. On January 25, 1905, evidently in reply to an offer, she again wrote to them that she would accept $3,675 for the land and allow them a commission of $80 for making the sale. On January 30, 1905, she wrote again, suggesting or agreeing to [107 N.W. 822] some modifications in the terms of payment. On January 31 the brokers telegraphed her:

Letter received. Party accepts your offer. All cash. See letter.

On the same day they wrote Mrs. O'Hara a letter and inclosed a check for $150 "as earnest money for the purchase of the land." In this letter they stated that

The party to whom we are selling this land was in today and we showed him your letter and he accepted your proposition, but will pay all cash as soon as the contract is completed.

Directions were then given Mrs. O'Hara with reference to the preparation of the abstract and other papers connected with the proposed transfer. On February 2d the Odett & Ball Land Company, assuming to act for Mrs. O'Hara, signed a written contract of sale of the land to the plaintiff, Larson, which contained the terms and conditions of the sale. The action is based upon this contract.

Mrs. O'Hara never directed the execution of the contract, and never saw it until it was produced at the trial. She received the letter of January 31 inclosing the check, and on February 2 replied that she would furnish an abstract and would send the deed as directed. She then, in the same letter, informs them that she had purchased the land from P. J. McGuire, and at the time of the purchase had agreed to reconvey the land to McGuire at any time within three...