Mitchell v. Knudtson Land Co.
Decision Date | 21 January 1910 |
Citation | 124 N.W. 946,19 N.D. 736 |
Court | North Dakota Supreme Court |
Appeal from District Court, McLean county; Winchester, J.
Action by Fred Mitchell against the Knudtson Land Company and another. Judgment for plaintiff, and defendants appeal.
Affirmed.
J. T McCulloch and Newton & Dullam, for appellants.
Memorandum of sale must disclose the parties to the contract. Wood on Statute of Frauds, 693 Sec. 358; Browne on Statute of Frauds 471; White v. Breen, 32 L.R.A. 127; Louisville v. Lorick, 2 L.R.A. 212, and note; Beckwith v Talbott, 24 L.Ed. (U. S.) 496, Grafton v. Cummings, 25 L.Ed. 366.
Connection of several writings to make a contract, must be shown on their face. Tice v. Freeman, 15 N.W. 674; Morton v Stone, 39 N.W. 496.
When a plaintiff knows at the commencement of his action that specific performance cannot be had, his case should be dismissed. Morgan v. Bell, 16 L.R.A. 614; Lewis v. Yale, 4 Fla. 438; Doan v. Mauzey, 33 Ill. 227; Sellers v. Greer, 172 Ill. 549, 40 L.R.A. 589; Kempshall v. Stone, 5 John Ch. 193; Kennedy v. Hazelton, 32 L.Ed. (U. S.) 576; Morse v. Etmendorf, 11 Paige 277; Milkman v. Ordway, 106 Mass. 232; Welty v. Jacobs, 40 L.R.A. 98; Baldwin v. Fletcher, 12 N.W. 873; Morgan v. Bell, 16 L.R.A. 614.
J. E. Nelson and Theodore Landmann, for respondent.
Statute of frauds cannot be used as an instrument of fraud. 8 Am. & Eng. Enc. (1st Ed.) 737.
This is an action for the specific performance of a contract for the purchase of real estate. The complaint alleges that the Knudtson Land Company is a corporation organized under the laws of Minnesota. In the negotiation of the contract, the Casey Land Company acted as the agent of the plaintiff, and the defendant, O. A. Knudtson, acted as the agent of the defendant corporation. The contract relied on in the complaint was entered into through telegrams and letters, and some of these letters and telegrams are set forth in the complaint to show that a contract was entered into through such correspondence. As such letters and telegrams will be considered with the merits, and their contents set forth in the opinion, they will not now be further referred to. The complaint further alleges that the plaintiff went into possession of the land under such contract, with the consent of the defendants, and that he has been ever since, and now is in possession of such land. He further alleges in the complaint his readiness and willingness to fulfill said contract by the payment of the balance of the purchase price, and that he has offered to perform all of the conditions on his part to be performed in said contract, but that the defendants have refused to comply with said contract by conveying the premises to him. The relief demanded is that the defendants be compelled to specifically perform such contract by conveying the land to this plaintiff, and if the defendants, or either of them, cannot comply with the terms of said contract by executing a good and sufficient deed to plaintiff, then that the defendants pay to the plaintiff the sum of $ 1,120 damages sustained by reason of the failure of defendants to specifically perform said contract of sale. The answer is a general denial, except the express admission of allegations 1 and 2 of the complaint, which relates to the corporate capacity of the defendant company and the agency of the defendant, O. A. Knudtson for the defendant company. The district court made findings of fact and conclusions of law favorable to the plaintiff upon all of the issues. Defendants have appealed from a judgment entered pursuant to such findings and demand a review of the entire evidence under the provisions of section 7229 Rev. Codes 1905.
In the complaint it is alleged that the defendant Knudtson was the "duly authorized agent of the Knudtson Land Company," and this allegation is expressly admitted in the answer. It is now claimed by the appellants that there is no proof in the record showing that Knudtson was authorized in writing so as to empower him to bind the Knudtson Land Company by contract for the sale of this real estate. Under our statute an agent for the sale of real estate must be authorized in writing by his principal before the act or acts of the agent in making a sale of land on his behalf will be binding upon him. The objection to that allegation was not raised by demurrer. Hence it should be more liberally construed against the objection now urged. Without intimating that the allegation would be insufficient if attacked by demurrer, we are satisfied that it is sufficient when objected to for the first time in this court or at the trial. The contention of the appellants that the purpose and extent of the agency must be pleaded in cases like the present cannot be sustained. The allegation that Knudtson was the "duly and authorized agent of the Knudtson Land Company" should be construed as stating that he was a duly and regularly authorized agent of said company for all purposes in connection with the transaction set forth in the complaint. By admitting such allegation to be true, it must be admitted to be an admission of such agency with full authority in the premises. This court has recently held that an allegation in a complaint that a contract was entered into between parties will be presumed to be a legal contract, and in writing, if a written contract is necessary for the purposes of the contract. Hanson v. Svarverud, 18 N.D. 550, 120 N.W. 550. The same principle is applicable here. The general allegation of an authorized agency will be presumed to be an agency with full powers legally conferred. If the allegations were insufficient, however, it could avail nothing to defendants, as no objection was taken to the offer of letters in evidence, written by the defendant corporation through Knudtson as agent, which was based upon the ground that the authority of Knudtson was not shown. Such letters and contracts are therefore in the record unobjected to. It also appears in the record that the corporation, by its trustees or executive committee, authorized Knudtson to accept the offer submitted on behalf of the plaintiff for this land, and that such executive committee or trustee authorized Knudtson to go to New York to procure a deed thereof for the plaintiff. This testimony was also admitted without objection that it was not the best evidence of the fact. This evidence was in the form of a conversation between Knudtson and the plaintiff, and in that conversation Knudtson stated that the trustees or executive committee of the defendant corporation had given him authority to accept the offer made on behalf of Mitchell. This was proof of the fact that the company had authorized Knudtson to accept the offer, and was sufficient for all purposes so long as no objection was made thereto as to its competency. It was proof of an official act of the corporation, through its trustees, and was entirely separate from proof of agency. We therefore find the first contention of the appellants untenable upon grounds clear and satisfactory.
It is claimed that no contract was entered into between these parties. As stated, negotiations were conducted through letters and telegrams. It therefore becomes a question of law whether the minds of the parties met as to the transaction. In other words, it is a question of law whether a contract was entered into. We find in the record an unconditional proposition in writing from the plaintiff through his agent for the purchase, upon definite terms, of the land in suit. This offer was accompanied by a check of $ 50 as part payment. This check was cashed by Knudtson, and the money retained from February 23, 1906, to June 25, 1906. This offer was made by letter on February 23, 1906. The terms of the offer were taken from a circular letter or list of the lands which the defendants had placed with the Casey Land Agency for sale. On February 27th, the defendant company, by a letter written by the defendant Knudtson, stated: Before the plaintiff again heard from the defendants in respect to this offer, the plaintiff's agent, at the request of the plaintiff, modified the offer of February 23d to the effect that cash would be paid for the land upon the terms stated in the circular letter or list that had been placed for sale with Casey & Co. by the defendants. This modification was an unconditional one. Plaintiff requested a reply by wire or mail, but none came until March 29th, which was in answer to the following telegram to Knudtson at Minneapolis: The answer to Casey from Knudtson was as follows:
On April 3d, the plaintiff, through his agent, wrote as follows:
On April 19th, the Knudtson Land Company, through O. A. Knudtson, wrote the Casey Land Company concerning this matter as follows:
On April 21st, the Casey Land Company wrote O. A. Knudtson as follows: "Dear Sir: ...
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