Levy v. Yarbrough

• Decision Date: 25 November 1913
• Docket Number: Case Number: 3279
• Citation: 41 Okla. 16,136 P. 1120,1913 OK 696
• Parties: LEVY v. YARBROUGH et al.
• Court: Oklahoma Supreme Court

1913 OK 696

136 P. 1120

41 Okla. 16

LEVY v. YARBROUGH et al.

Case Number: 3279

Supreme Court of Oklahoma

Decided: November 25, 1913

Syllabus

¶0 1. BROKERS--Authority of Broker--Contract of Sale. The mere listing of real estate with a broker for the purpose of procuring a purchaser thereof acceptable to the owner does not constitute authority in such broker to bind the owner by an executory contract of sale.

2. SAME. Before a real estate broker can bind the owner by an executory contract of sale, he must have specific authority so to do from the owner.

3. FRAUDS, STATUTE OF--Parol Agreement--Right to Enforce. A parol agreement for the sale of lands will be enforced by the courts where the vendee has paid the purchase price, and taken possession, in good faith, of the premises with the knowledge and consent of the owner, and has made permanent improvements thereon. (a) But the mere acceptance of the purchase price under an oral contract is not of itself sufficient to take the sale out of the statute of frauds. (b) Nor will the fact that the owner orders an abstract of the property to be made take such case out of the statute.

G. A. Paul, for plaintiff in error.

John H. Wright and Clarence J. Blinn, for defendants in error.

BREWER, C.

¶1 This suit is in the alternative for either a specific performance of a contract for the sale of certain lots, or for damages for failure to comply with such contract. The plaintiff in error, who was plaintiff in the trial court, and will be hereafter so designated, claims that he made a contract with a real estate firm for the purchase of certain lots upon certain terms, and that such contract was binding upon the defendants, and that it was their duty under the law to fulfill the same by a conveyance of the property. Plaintiff's first petition, filed June 15, 1909, asserted that the authority from the defendants to the real estate agents to sell the property was verbal. A demurrer was sustained. An amended petition filed July 24, 1909, did not materially change the averments of the first one, and, being attacked by demurrer, met the same fate. The second amended petition, filed March 15, 1910, alleged that the defendants had authorized the real estate firm in writing to sell the land, but that defendants "neglected and forgot to place their signatures to * * * written agreement," etc. This petition was held insufficient, and on February 21, 1911, the plaintiff filed what he terms a supplemental petition, and this one was also held on May 13, 1911, to be insufficient as against a demurrer. The plaintiff, refusing to plead further, brings the case here; the sole point involved being the sufficiency of the allegations of the plea to support the action. The petition involved here avers, in substance, merely that the defendants listed their property with the real estate agents by a personal application therefor, and stood by and saw the agents write out a listing card, upon which the agents placed their names, the property to be sold, and the amount of price wanted, and that this constituted an authority in writing in the real estate agents, and that thereafter the plaintiff made a written offer to buy the property from said agents, describing it, together with the consideration and the terms of payment, and that the said agents accepted said offer and signed the same at the bottom thereof. In describing the authority of the agents under the listing aforesaid, the plaintiff says:

"That on and before the said 5th day of June, 1909, the said defendants, being desirous of selling said real estate, listed the same with one G. B. Stone Realty Co., of Oklahoma City, Okla., for the purpose of procuring a purchaser therefor, and by such listing the said defendants directed and authorized the said Stone Realty Company to act in the capacity of agent for the sale of said real estate at the price of $ 7,875, upon such terms as suited the defendants."

¶2 The plaintiff further alleged a ratification by the defendants of the contract of sale made with the agents. Without discussing in detail the allegation that the authority given the agents was in writing, we think it sufficient to say that the authority of the agents as alleged, even had it been in writing, was not sufficient authority in the agents to make for the defendants a binding contract of sale of the lots. The giving of an agent the authority to handle real estate, and to procure a purchaser for the same, falls far short, in our judgment, of authorizing such agent to make a binding contract of sale himself. It will be observed that the averment says: That defendants listed the lots with the agent "for the purpose of procuring a purchaser therefor" to act as agent for defendants in the sale of the lots "upon such terms as suited the defendants." In our judgment the allegations of the petition show no authority in the agent further than to procure a purchaser acceptable to the owners. This question was before the territorial Supreme Court in case of Gault Lumber Co. v. Pyles et al., 19 Okla. 445, 92 P. 175, and in the body of the opinion, written for the court by Chief Justice Burford, it is said:

"Nor do we think there was shown such a written authority of the agent to sell as will take the case out of the statute of frauds. An authority of an agent to sell real estate, in order to bind the owner by executory contract, must be specific and certain as to terms and description. Ordinarily, when property is placed in the hands of an agent to sell, the authority conferred is only held to be the authority to find a purchaser at a given price and submit the same to the owner, and not an authority to sell and bind the owner."

¶3 And in the case of Weatherhead v. Ettinger, 78 Ohio St. 104, 84 N.E. 598, 17 L. R. A. (N. S.) 210, it is said by the Supreme Court of...