Orr v. Rieger

• Decision Date: 03 July 1931
• Docket Number: 30,051
• Citation: 133 Kan. 558,300 P. 1074
• Parties: E. A. ORR, Appellant, v. H. W. RIEGER, Appellee
• Court: Kansas Supreme Court

300 P. 1074

133 Kan. 558

E. A. ORR, Appellant, v. H. W. RIEGER, Appellee

No. 30,051

Supreme Court of Kansas

July 3, 1931

Decided July, 1931.

Appeal from Hamilton district court; HARRY E. WALTER, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BROKERS--Authority of Broker to Bind Principal. Written authority given to a real-estate broker to sell land does not authorize the broker to make a contract with the purchaser obligating the principal to convey to the purchaser.

2. SAME--Authority of Broker--Correspondence Construed. Correspondence by letter and telegram between a landowner and a real-estate broker considered, and held, authority was not given the broker to bind the owner by contract to convey to a purchaser procured by the broker.

R. S Field, of Syracuse, and H. O. Trinkle, of Garden City, for the appellant.

Lester Luther, of Cimarron, for the appellee.

OPINION

BURCH, J.:

The action was one to compel specific performance of a contract to convey real estate. A demurrer to the petition was sustained, and plaintiff appeals.

Rieger, who lived in Chicago, owned a quarter section of land in Hamilton county. Baker was a real-estate broker at Syracuse in Hamilton county. As agent for Rieger, Baker found a purchaser for the land in the person of Orr, who lives at Garden City. Orr commenced the action to compel Rieger to convey.

The negotiations between Rieger and Baker were by letter and telegram. On March 15, 1930, Rieger answered a letter from Baker, and said that if Baker had some one interested in the land, Rieger would sell on stated terms. On March 27 Baker sent a telegram to Rieger stating he had shown the land and the party made an offer, which was submitted in the telegram. Rieger promptly sent Baker the following telegram: "Sell at once eight hundred cash to me clear advise." On March 28 Baker telegraphed Rieger he had "contracted the land," as per Rieger's telegram, and Baker confirmed his telegram by a letter containing the following:

"Your telegram of March 28, advising that we sell your Hamilton county quarter of land, duly received, and have made sale according to same. Herewith find deed to the land in question partly filled in. Not knowing whether you are a single man or not, have left main body of deed in blank. You can go before a notary public and have deed properly filled in, and send same to the Valley State Bank, Syracuse, with instructions for delivery upon payment of the $ 800 less necessary expense of title to said land."

The deed referred to in Baker's letter was received by Rieger, and was signed by Rieger, but was not delivered. Copies of the writings, except the deed, were embodied in the petition. There was nothing in the petition to show that Rieger knew Orr was the person with whom Baker dealt. The petition contained the following allegation:

"That said communications by letters and telegrams authorized said S. J. Baker to sell, as agent for said defendant, the land described in said letter for the sum of eight hundred dollars cash, net to the owner. That this plaintiff was the buyer of said land from said S. J. Baker, as agent of the defendant, and on March 28, 1930, said S. J. Baker did, as the agent of said defendant, contract and agree to sell to this plaintiff the land herein described at and for the net price of eight hundred dollars, to be paid to the owner thereof, the defendant in this action."

The writings make Baker's position in the transaction perfectly clear. Baker was Rieger's agent to sell the land. Baker was not himself a purchaser, and he negotiated for Rieger with an undisclosed third person as the prospective purchaser. This relation of Rieger as principal to Baker as agent is pleaded in the petition, and Orr pleaded that he contracted with Baker as Rieger's agent.

The writings do not disclose authority of Baker to bind Rieger by a contract to convey.

"The inquiry to be determined in each doubtful case is whether the owner has shown an intention that his agent should merely act as an ordinary broker or that he should go further and actually effect a binding contract of sale. The great weight of authority is that the latter intention will not be inferred except from the use of unequivocal expressions to that effect, and that the terms 'sell' and 'sale' are not of that character." (Brown v. Gilpin, 75 Kan. 773, 783, 90 P. 267.)

The decision in Brown v. Gilpin was rendered in 1907. Between the years 1907 and 1921 the decision was approved by this court ten times. In 1922 the case of Goldberg v. Investment Co., 112 Kan. 348, 211 P. 157, was decided. The syllabus reads:

"An owner executed a written instrument appointing an agent, exclusively, for a limited period, 'to lease' real estate for ninety-nine years, the lease to take effect on acceptance of the terms stated in the instrument. Held, authority of the agent was limited to finding a tenant, and did not include authority to contract, or to execute a written lease, on behalf of the principal." (P 2.)

In the opinion it was said:

"The words 'to lease' do not of themselves indicate authority to conclude a contract of lease or to execute a written instrument of lease. In the case of Brown v Gilpin, 75 Kan. 773, 90 P. 267, it was contended an agent appointed 'to sell' real estate had power to bind his principal by a contract of sale. ...