Lewis v. Jones

• Decision Date: 25 August 1920
• Docket Number: 4707
• Citation: 178 N.W. 1001,43 S.D. 282
• Parties: ROBERT M. LEWIS,, Plaintiff and appellant, v. ADELIA C. JONES, Defendant and respondent.
• Court: South Dakota Supreme Court

43 S.D. 282

178 N.W. 1001

ROBERT M. LEWIS,, Plaintiff and appellant,

v.

ADELIA C. JONES, Defendant and respondent. South Dakota Supreme Court Appeal from Circuit Court, Yankton County, SD Hon. Robert L. Tripp, Judge #4707--Affirmed Harry A. Robinson Attorney for Appellent. French, Orvis & French Attorneys for Respondent. Opinion filed August 25, 1920

POLLEY, J.

This action was brought to recover damages alleged, to have been occasioned by defendant's failure to convey real estate. Defendant, being the owner of a certain piece of real estate, by an instrument in writing, employed a firm of real estate brokers to sell the same. The said instrument reads as follows:

"September 24, 1919.

"Made this 24th day of September, 1919, between Adelia C. Jones, party of the first part, and Wheeler & Ellerman, party to the second: Witnesseth that Adelia C. Jones, this day gives Wheeler & Ellerman the exclusive sale of the following property, situated in Yankton county, state of South Dakota, for the space of 30 days, (months), vis.: Lot 6, block 3, Lower Yankton, 44x 150. ...

"Witnesseth our hands and seals the day and year first above written.

"[Signed] Adelia C. Jones. "Witness: [Signed] E. Ellerman."

Within the term of said employment the said Wheeler & Ellerman entered into the following contract in writing:

"Yankton, S. D., Ott. 22, 1919.

"Received of R. M. Lewis the sum of $600 to apply on the purchase price of lot 6 in block 3, Lower Yankton, So. Dak. which I have this day sold to the said R. M. Lewis, at the agreed price of $4,350.00. The balance of said purchase money to be paid by the said R. M. Lewis upon the execution and delivery of the necessary and proper warranty deed of conveyance. Said deed to be executed and delivered with a reasonable time not to exceed thirty days from date of this contract.

"Dated at Yankton, So. Dak., this 22nd day of October, 1919.

"[Signed] Adelia C. Jones.

"By Wheeler & Ellerman, Her Agents.

"I hereby agree to purchase the aboveLdescribed real estate at the price and upon the terms set forth in the above receipt and to pay the balance of said purchase money upon the execution and delivery of the deed as therein specified.

"Dated this 22d day of October, 1919.

"[Signed] R. M. Lewis."

Appellant tendered the balance of the purchase price, and demanded a deed in accordance with the terms of said contract. Respondent refused to carry out the contract, and conveyed the property to other parties. Appellant, claiming to have been damaged by respondent's failure to convey, brought this action to recover such damages. It is not claimed that respondent ever accepted the $600 that had been paid to Wheeler & Ellerman, or did any other act that would tend to ratify the said contract.

The only question presented by the record is whether the written instrument above set out authorized Wheeler & Ellerman to bind respondent by the written contract entered into by them.

At the outset of the argument appellant states that he "recognizes the full weight of the general rule, announced by this court in Litchy v. Daggett, ...