Mathews v. Sowle
| Decision Date | 04 April 1882 |
| Parties | BENJAMIN L. MATTHEWS, APPELLEE, v. WILLIAM H. SOWLE, CELIA SOWLE AND HANNAH TIBBETS, APPELLANTS |
| Court | Nebraska Supreme Court |
APPEAL from the district court of Jefferson county. The action was brought in that court to enforce the specific performance of an alleged contract for the sale of a tract of land in that county. The contract was as follows:
This contract made and entered into this 14th day of February 1880, by and between W. H. Sowle of Los Angelos, California party of the first part, and B. L. Matthews of Fairbury Nebraska, party of the second part. The party of the first part agrees to sell to the second party for the sum of fifteen hundred dollars the following property situate in Jefferson county, Nebraska, to-wit: The south half of the south-east quarter of section six, town 1, range 2 east, and the north half of the north-east quarter of section seven town 1, range 2, east, all in Jefferson county, Nebraska. And the second party agrees to buy the said place at said sum. Said sum of money to be paid in cash down upon the first party executing and delivering to said second party a good and sufficient conveyance therefor. The first party agrees within a reasonable time to execute and deliver said conveyance to said second party.
Witness our hands this the day and year last above written.
W. H. SOWLE, by
W. H. SNELL, Agt.
B. L. MATTHEWS, by
A. W. MATTHEWS, Agt.
Endorsed on the back:
W. H. SOWLE, by
W. H. SNELL, Agt.
On the same day there was paid on said contract the sum of $ 500, and plaintiff took possession of the premises. Afterwards, and before commencement of this suit, he tendered the balance of purchase price, $ 1,000.00. The defendants all denied that Snell was their agent with power to bind them by contract, or that A. W. Matthews was the agent of the plaintiff with authority to bind him by the contract. They further allege that prior to the alleged sale to plaintiff, there was a bona fide sale of the land in controversy by Wm. H. Sowle and wife to the defendant, Hannah Tibbets, and this last named defendant, besides her answer, filed a cross bill asking that the pretended sale to plaintiff may be declared null and void, and for other relief. Trial had before WEAVER, J., and decree for plaintiff. Defendants appeal.
Judgment reversed and action dismissed at the costs of the plaintiff.
S. N. Lindley (Marquett, Deweese & Hall with him), for appellants.
1. The contract must be clearly proved. 2 Story's Equity, 751, 764. Pomeroy on Contracts, sec. 136.
2. There can be no contract unless the parties thereto assent, and they must assent to the same thing in the same sense. 1 Parsons on Contracts, 399, 400, 401, 402. McCotter v. Mayor, 37 N.Y. 325. Trevor v. Wood, 36 N.Y. 307. Brittain v. Phillips, 24 Howard, N.Y. 171. Pomeroy on Contracts, sec. 64. Even when parties think they have agreed and made a contract, if, in fact, they at the time of its execution intended it in a different sense, there is no contract. Scranton v. Booth, 29 Barb., 171. Baldwin v. Mildeberger, 2 Hill, 176. Still further, if, instead of rejecting, Snell had accepted the offer, yet, if he ended by asking the plaintiff's assent, as he unquestionably does, there is no contract till the assent is obtained. Hough v. Brown, 19 N.Y. 111. Pomeroy on Contracts, sec. 63 and notes.
3. If there was no contract then there could be no partial performance. The alleged payment of $ 500 and the possession taken by A. W. Matthews with the assistance of Snell under such very suspicious circumstances of haste count for nothing. Pomeroy on Contracts, sec. 115. Philips v. Thompson, 1 John. Ch., N.Y. 131. Parkhurst v. Van Cortland, 1 John., 273. Lord v. Underdonk, 1 Sand. Ch., 579. Payment of the consideration will not cure a contract which is not in itself complete and valid at law. Rhodes v. Rhodes, 3 Sand. Ch., 279. Sites v. Keller & Skinner, 6 Ohio 489. Blanchard v. McDougal, 6 Miss. 165. Knoll v. Harvey, 19 Miss. 111. Wagoner v. Booger, 3 Met. 209.
Slocumb & Hambel and W. H. Snell, for appellee, argued mainly from the evidence alone to support the decree below, contending that Snell was the general agent of W. H. Sowle, with respect to everything pertaining to the land and especially for the purpose of making a sale of it on terms most advantageous to Sowle; that at no time did it appear that said Snell ever refused or declined to act as agent for the sale of the land; that Snell's letters referred to, as containing a "prompt and emphatic refusal" on his part to act as such agent, was of itself corroborative testimony showing that he accepted the agency and was using his utmost endeavors in the interest of Sowle to sell the land; and in that letter reported an offer to Sowle of $ 1,300, as he had no authority himself to close a sale for less than $ 1,500 without Sowle's consent.
In our view of this case the judgment of the district court cannot be upheld. The principal question presented, and the one on which our decision must turn, is as to the authority of W. H. Snell to make the alleged sale. If such authority were conceded, or could reasonably be found from the evidence, we should not hesitate upon the other points to uphold the sale and affirm the judgment. There is no ground for claiming that Snell was the general agent of the defendant. As to the land in question, in the matter of selling or negotiating a sale of it, his agency was special and depended entirely upon the approval of his principal. Snell's own letters to Sowle, as well as those written in answer, show this to be so. With this understanding of the relation of Snell to the owner of the land, a correct solution of the question of authority is not, as it seems to us, at all difficult.
It is claimed that authority to make the sale is sufficiently established by a letter written by Sowle to Snell, of which the following is a copy:
LOS ANGELOS, CAL. , Jan. 19th, 1880.
MR SNELL--Dear Sir: Received your letter of Jan. 6th, 1880. Mr. Crisp wrote me that Mr. Saxon would prosecute J. N. Thompson and others, if any, for stealing timber, and collect rents, etc., for the sum of $ 25. I told Mr. Crisp to get the rent and employ Mr. Saxon and pay him the $ 25. But it seems by some means Mr. Saxon was not employed, and that you have been employed in his stead. I'm very ignorant so far and would like to know and must know the particulars. Have you received the $ 25 from Eli C. Crisp? If not, what will your charges be? I want to know in particular who it is that wants to buy the place. There is several parties here who are dissatisfied with this country and are going back to Nebraska in the spring, as they have disposed of their property here, and they say, that they would rather have twenty-five acres of my land, as 1,000 acres here to farm, if it is as good as I represent it. But I suppose it would not show to an advantage, like it did, when I left there. Rather than to trouble myself any more about the place, and that my business here is much more important, and after reflecting upon the matter, I have concluded to take $ 1,500,...
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