Lewis v. Jones

• Decision Date: 25 August 1920
• Docket Number: No. 4707.,4707.
• Citation: 178 N.W. 1001,43 S.D. 282
• Parties: LEWIS v. JONES.
• Court: South Dakota Supreme Court

43 S.D. 282

178 N.W. 1001

LEWIS

v.JONES.

No. 4707.

Supreme Court of South Dakota.

Aug. 25, 1920.

Appeal from Circuit Court, Yankton County; R. B. Tripp, Judge.

Action by Robert M. Lewis against Adelia C. Jones. From order sustaining demurrer to the complaint, plaintiff appeals. Affirmed.Harry A. Robinson, of Yankton, for appellant.

French, Orvis & French, of Yankton, for respondent.

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, 44x150. ***

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., Oct. 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 within a reasonable time and 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 above-described 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 damage. 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 Lichty v. Daggett, 23 S. D. 380, 121 N. W. 862,Riley v. Grant, 16 S. D. 553, 94 N. W. 427,Hickox v. Bacon, 17 S. D. 563, 97 N. W. 847,Watters v. Dancy, 23 S. D. 481, 122 N. W. 430, 139 Am. St. Rep. 1071, and Ballou v. Carter, 30 S. D. 11, 137 N. W. 603, that the ordinary brokerage contract ‘to sell’ real property is merely authority...