Leggett v. Evans

• Decision Date: 16 June 1909
• Citation: 16 Idaho 760,102 P. 486
• Parties: W. H. LEGGETT, Respondent, v. C. E. EVANS, Appellant
• Court: Idaho Supreme Court

102 P. 486

16 Idaho 760

W. H. LEGGETT, Respondent, v. C. E. EVANS, Appellant

Supreme Court of Idaho

June 16, 1909

APPEAL-LACHES IN PROSECUTING-MOTION TO DISMISS-MOTION FOR A NEW TRIAL-REAL ESTATE AGENT-LIABILITY OF-VERDICT OF JURY-SUBSTANTIAL EVIDENCE TO SUSTAIN.

1. Showing held sufficient to exempt appellant from the charge of laches in prosecuting his appeal.

2. Where the transcript shows that a motion for a new trial was brought on to be heard, and the same was heard and denied by the court, and there is nothing in the record to show that the motion was not properly made and passed upon, this court will presume that it was properly made.

3. Held, that the evidence is sufficient to sustain the verdict of the jury.

4. Under the provisions of sec. 4824, Rev. Codes, 1909, where there is substantial evidence to sustain the verdict, it will not be set aside on appeal.

(Syllabus by the court.)

APPEAL from the District Court of the Fourth Judicial District, for Twin Falls County. Hon. Edward A. Walters, Judge.

Action to recover damages for alleged failure to comply with a contract concerning the sale of real estate. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

John Kerr, and Stockslager & Bowen, for Appellant.

When a person acts and contracts avowedly as the agent of another who is known as the principal, his acts and contracts, within the scope of his authority, are considered the acts and contracts of the principal, and involve no personal liability on the part of the agent. (1 Am. & Eng. Ency. of Law, 2d ed 1119; Whitney v. Wyman, 101 U.S. 392, 25 L.Ed. 1050; Engles v. Heatly, 5 Cal. 135; Lehman v Feld, 37 F. 852; Merrill v. Williams, 63 Cal. 70.) A principal must assume the obligations, if he wishes the benefit of an unauthorized contract made by an agent. (St. John Mfg. Co. v. Munger, 106 Mich. 90, 58 Am. St. 468, 64 N.W. 3, 29 L. R. A. 63; Rackemann v. Riverbank Imp. Co., 167 Mass. 1, 57 Am. St. 427, 44 N.E. 990; Andrews v. Robertson, 111 Wis. 334, 87 Am. St. 870, 87 N.W. 190, 54 L. R. A. 673.)

If a person having no authority assumes to act as an agent, but his acts are afterward ratified by his principal, the agent cannot be sued on the contract, or for its breach, or for damages for want of authority. (Sheffield v. Ladue, 16 Minn. 388, 10 Am. Rep. 145.) One who without authority has assumed to act as agent for another, and as such agent has entered into a contract in the name of his assumed principal for the sale of the property of the latter, cannot be held liable on the contract for damages for its breach. (Senter v. Monroe, 77 Cal. 347, 19 P. 580; Sheffield v. Ladue, supra; 16 Ency. Pl. & Pr. 906.) Where one through mistake pays an agent money believed to be due the principal, and the agent received it and passed it into his principal's possession with the knowledge of the payer, such payer cannot maintain an action for the money so paid against the agent. (Ashley v. Jennings, 48 Mo.App. 142; Shepard v. Sherin, 43 Minn. 382, 45 N.W. 718; Bailey v. Cornell, 66 Mich. 107, 33 N.W. 50; Shepard v. Sherin, supra.) The notice of intention to move for new trial is set forth in the record. The statement could not contain any motion, and it is not required that it should. The record on appeal from an order denying a motion for a new trial consists of the judgment roll, statement with a copy of the order. (Rev. Codes, sec. 4443.) The order of the court recites that a motion was made and shows all that is necessary. (Steve v. Bonners Ferry L. Co., 13 Idaho 384, 92 P. 363.) The statutes of Utah relating to new trials are practically the same as in Idaho. (Secs. 3291-3299, Rev. Stat, 1898.) It has been held in Utah that the notice of intention to move for a new trial stands for the formal motion, and the questions may be ruled upon, although no motion is filed.

Sweeley & Sweeley, for Respondent.

Although a person is known to be acting as agent, yet if he makes the contract in his own name or personally assumes its obligations he is individually liable. (Clark on Contracts, p. 740; Page on Contracts, sec. 975; Bishop on Contracts. 2d ed., sec. 1077; Murphy v. Helmrich, 66 Cal. 69, 4 P. 958; Dockarty v. Tillotson, 64 Neb. 432, 89 N.W. 1050; Story on Agency, sec. 269 et seq., and notes; 1 Am. & Eng. Ency. Law, 2d ed., 1120.) "The mere appending of the word 'agent' to his signature will not save him." (Bishop on Contracts, sec. 1077, and cases cited in notes. )

A real estate agent or broker has no implied authority to receive money to apply on the sale, and if he receives it in the absence of express authority, he does so as agent of, the purchaser, and is personally bound to make proper accounting. (Clark & Skyles on Agency, sec. 758; Halsell v. Renfrow, 14 Okl. 674, 78 P. 118.)

SULLIVAN, C. J. Stewart, J., concurs. AILSHIE, J., Dissenting.

OPINION

SULLIVAN, C. J.

This action was brought to recover damages for alleged failure to comply with a contract concerning the sale of real estate. It is alleged in the complaint, in substance, that the defendant was a real estate agent; that in the month of April, 1907, he represented to the respondent, who is plaintiff, that he had authority to sell certain real estate situated in the town of Twin Falls, and proposed and offered to procure from the owners a deed conveying the clear title to said property to the plaintiff for $ 8,000; that the respondent accepted said proposition and paid the appellant $ 5,000 to apply on the purchase price; that at the time of making said contract there was a mortgage upon said real estate, the amount of which was unknown to the respondent, but that $ 8,000 was the contract price for a clear title to said real estate; that some time after the payment of said $ 5,000, the respondent paid $ 500 more on said contract; that it was the agreement that he could pay the balance of the purchase price at any time within two years from the date of said contract; that the respondent is now ready and willing to pay the balance of $ 2,500 of said purchase price, but that there remains $ 3,574.92 unpaid on said mortgage, and that there was unpaid taxes against said real estate, which was a lien thereon, of $ 136; that by reason of the matters and things set forth in said complaint and the failure of the defendant to procure a clear title to said real estate, plaintiff has been damaged in the sum of $ 1136 and prays for judgment for that amount.

The answer contains a denial of certain allegations of the complaint, and as a further defense sets up that the defendant was only an agent of the owners of said property, and that he had no dealings with the plaintiff in the sale of said real estate other than as the agent of the owners, and asked that the action be dismissed and that he be awarded his costs.

The cause was tried by the court with a jury and verdict and judgment rendered and entered against the defendant for the sum of $ 786.83. A motion for a new trial was made and overruled by the court and this appeal is from the order denying a new trial.

A motion has been made by counsel for appellant in this court to dismiss the appeal on two grounds: First, that the appeal was not taken within the time prescribed by the statute and rules of the court, and, second, that the appeal purports to be taken from an order overruling a motion for a new trial, but that no motion for a new trial was ever filed in said action.

It appears from the record that the judgment on the verdict was entered December 21, 1907; that by stipulation the defendant was given sixty days in which to prepare and serve a statement on motion for a new trial; that prior to the expiration of that period an order was made by the trial judge extending the time to March 15, 1908, and it appears from the affidavit of appellant filed on this motion that on March 14, 1908, the proposed statement was mailed, postage prepaid, to counsel for respondent, at Twin Falls, Idaho; that respondent's counsel failed to file or serve any proposed amendments thereto, and on April 10, 1908, counsel for appellant wrote to respondent's counsel requesting information as to whether they desired to propose any amendments to said proposed statement, and if not, if they would agree to the settlement of the proposed statement; that under date of April 13, counsel for appellant received a letter from respondent's counsel requesting additional time to propose amendments, to which no objections were made by appellant, and thereafter further communications were had between respective counsel and no amendments were proposed until September 3, 1908, which amendments were accepted by counsel for appellant on September 22, 1908. Thereafter said proposed statement with amendments was engrossed and a copy sent to counsel for respondent with the request that the same be certified for settlement; that respondent's counsel returned said engrossed statement on October 5, 1908, and on October 16, 1908, counsel for appellant presented the same to the judge of said court for settlement and the judge settled the same, and on November 9, 1908, the order denying a new trial was made. The appeal was taken from said order on January 7th which was within sixty days after the order overruling the motion for a new trial was made, or within the time required by the provisions of sec. 4807, Rev. Codes.

It appears from the foregoing facts that counsel for respondent retained in his possession the proposed statement on motion for a new trial without proposing any amendments thereto from the 15th of March until September following, and his holding said proposed statement without proposing any amendments thereto was the cause of the delay for a period of about six months. That period of delay...