Lukey v. Smith

• Decision Date: 23 October 1961
• Docket Number: No. 4397,4397
• Citation: 77 Nev. 402,365 P.2d 487
• Parties: John LUKEY and Edna Lukey, Appellants, v. Ray P. SMITH, Respondent.
• Court: Nevada Supreme Court

Page 487

365 P.2d 487

77 Nev. 402

John LUKEY and Edna Lukey, Appellants, v. Ray P. SMITH, Respondent.

No. 4397.

Supreme Court of Nevada.

Oct. 23, 1961.

Donnell Richards, Reno, for appellants.

Ernest S. Brown and Jack I. McAuliffe, Reno, for respondent.

BADT, Chief Justice.

This is an appeal from a judgment awarding respondent a real estate commission based upon a written contract. Such contract comprised a written proposal by St. Mary's Hospital, Inc., to purchase property owned by appellants and a written acceptance of such proposal which contained the agreement of appellants to pay to respondent the sum of $1,400 for his services in procuring the purchaser.

In their appeal from the judgment, appellants assert that the lower court erred in holding (1) that respondent had a contract of employment with [appellants]; (2) that a binding contract was entered into between appellants and St. Mary's Hospital; and (3) that respondent had procured a purchaser ready, able, and willing to purchase the property evolved. We hold that none of these assignments has merit.

The written proposal to purchase recited that St. Mary's Hospital, Inc., agreed to purchase, through respondent as agent, the property described for $28,000, payable $8,000 cash, with the balance (secured by a first deed of trust) payable in five annual installments of $4,000 each, commencing one year from date of conveyance, without interest. Provisions of the contract provided for such items as taxes, insurance, the furnishing of a good and sufficient deed, policy of title insurance showing good merchantable title and other items not material to this appeal.

A written acceptance of the offer, bearing the names of appellants, appears in the following language: 'I/We as seller/sellers of the property mentioned above hereby irrevocably accept the above proposal and will comply with the conditions therein, and agree to pay Ray P. Smith $1,400 for his services in procuring the purchaser. Ray P. Smith is hereby authorized to give appropriate instructions to the escrow holder for the closing of this transaction. I/We further agree that in the event said purchaser fails to complete said agreement, and I/We shall not exercise my/our option to specifically enforce said agreement then Ray P. Smith shall retain from the earnest money deposit the amount of his full commission on the accepted purchase price, and upon payment of the balance thereof, if any remain, to the undersigned, the said Ray P. Smith shall thereupon be released from any further liability hereunder.' The foregoing is in turn followed by the following memorandum: 'In case title is impossible to convey there shall be no commission charged.'

It is admitted that in such acceptance of the offer Edna Lukey signed her own name and also the name of her husband John Lukey. The trial court found as follows:

'2. That on April 20, 1959, defendant Edna Lukey signed and executed a contract to sell the premises known as 330 Elm Street, Reno, Nevada. That said agreement provided for a real estate commission to be paid to plaintiff in the sum of $1,400.

'3. That defendant John Lukey did not sign said agreement but that said agreement was signed by defendant Edna Lukey in his presence and at his request and direction.

'4. That plaintiff had then produced a buyer ready, willing and able to purchase defendants' property on the terms and conditions required by defendants.'

(1) It is unnecessary for us to quote those portions of the transcript describing the execution of the acceptance of the offer and the circumstances under which Mrs. Lukey signed her husband's name. It is sufficient to say that the evidence amply supports the court's finding. This being so, it follows that John Lukey, as well as Edna Lukey, was bound by the written acceptance of the written offer to buy and the written promise to pay the commission. ¹

Commencing with the leading case of Gardner v. Gardner, 1850, 5 Cush., Mass. 483, to the latest citation in 1961, 80 C.J.S. Signatures § 6, p. 1291, Pocket Supp. § 6, n. 37, citing Barrett v. City of Fayetteville, 248 N.C. 436, 103 S.E.2d 500, we find approval in virtually every jurisdiction of the United States of the rule stated as follows: 'Generally, a signature may be made for a person by the hand of another, acting in the presence of such person, and at his direction, or request, or with his acquiescence, unless a statute provides otherwise. A signature so made becomes the signature of the person for whom it is made, and it has the same validity as though written by him.' Mechem, Outlines of Agency § 28 (4th Ed. 1952), adds to the statement of such rule, the following: 'In such a case the writer is sometimes referred to as an 'amanuensis' and the derived rule as the Amanuensis Rule.' Distinct from this is the rule arising from delivery and acts of...