Plaintiff v. Sherwood Co.
| Decision Date | 18 March 1913 |
| Citation | 72 W.Va. 195 |
| Parties | Alexander et al. v. Sherwood Company. |
| Court | West Virginia Supreme Court |
An agency, uncoupled with an interest, not for a definite time, may be revoked by the principal at will, without liability for damages. Commission or reward to be earned by an agent in executing the agency does not alone make the agency one coupled with an interest. (p. 198).
An agent to sell lands at a price net to the owner, under a contract of agency specifying no time for performance, is entitled only to a fair and reasonable opportunity to effect the sale thereof. What is a fair and reasonable opportunity is to be determined from the facts and circumstances of each case, (p. 198).
Error to Circuit Court, Pocahontas County. Action by John Alexander and others against the Sherwood Company. Judgment for defendant, and plaintiffs bring error.
Affirmed.
Price, Osenton & Horan, for plaintiffs in error. Wm. E. Chilton, F. R. Sill, and Willis & Homer, for defendant in error.
In and prior to 190-1 McGraw, McClintic, the defendant, and others whose names do not appear, were owners of contiguous lands in Pocahontas county, aggregating approximately 15, 000 acres. The plaintiffs were agents of McGraw and McClintic, authorized to sell their lands. Thomas J. Shryock and Geo. F. M. ITauek were directors, the latter being president, of the defendant. On May 17, 1906, Shryock wired Alexander that he would recommend that the defendant sell its land at the rate of ten dollars per acre net, one third cash, balance in one, two and three years, with interest, secured by mortgage on the land, reserving mineral rights, but saying nothing about commissions or time limit. Two months later, Alexander sold the entire boundary to Miller & Miller at fifteen dollars per acre cash, and so advised Shryock, and requested a deed to him as trustee for defendant's part thereof, to be accompanied by a draft for the purchase money, at ten dollars per acre, and delivered as an escrow to the West End Trust Company of Philadelphia. The money necessary was to be raised by a sale of bonds secured by mortgage on the lands sold. Deeds were accordingly executed and delivered by all the owners, including the plaintiffs, who in the meantime had purchased and become the owners of the smaller tracts within the boundary and containing about three thousand acres. The sale to the Millers was not perfected, for reasons not assigned, nor is it material, as that deal was treated as abandoned.
Alexander testifies that immediately thereafter he and his coplaintiff continued their efforts to obtain a purchaser, and again sold to the Wilsons at eleven dollars per acre. But at a meeting in Baltimore in October, 1907, all the owners being present, together with Shryock and Hauck representing defendant, the latter declined to confirm the sale, assigning as a reason therefor that the directors by resolution had withdrawn defendant's lands from the market. From the date of Millers' failure to complete their purchase to defendant's refusal to convey to the Wilsons, there had been no communication between plaintiffs and Shryock and Hauck in relation to any sale of the lands by the former. Xor from the latter date until in March, 1909, was there any such communication between them, except an interview between Williams and Shryock relating to some maps of the lands. But in March or early in April, 1909, all the owners being again present in Baltimore, defendant and other owners did in fact convey the entire boundary for eleven dollars per acre to the Chaffey-Wilson Lumber Company, for whom the Wilsons were formerly negotiating with plaintiffs for the lands. About six months thereafter plaintiffs, claiming as selling agents for defendant, instituted this action assumpsit to recover from defendant $5524.40, that sum being at the rate of onedollar per acre for the lands owned, by it. Upon the conclusion of plaintiffs' evidence upon the trial of the case, the court, upon defendant's motion, excluded it and directed a verdict for defendant, and refusing to set aside the verdict and judgment, and to grant a new trial, plaintiffs obtained this writ of error.
The argument by briefs is directed principally to a discussion of the sufficiency of the evidence for the consideration of the jury. If thus sufficient, and consistent with allegations of the declaration, the court erred in its rulings. The defendant insists it is objectionable in both aspects. It assails what purports to be common counts in the declaration, arguing in effect that they are not common counts but special counts on the contract. That view is apparently without substantial merit. The counts say that plaintiff performed certain work and services for defendant, for which it promised to pay upon request an amount plaintiff reasonably deserved to have therefor, what such services were reasonably worth, and that the defendant became indebted to them for such work and services and promised upon request to pay therefor, stating the same sum in each count. These counts are in proper form. Hogg's Plead. & Forms 232. The other counts of the declaration are upon contract, Shryock's telegram and other communications between him and Alexander being the basis therefor.
The evidence proves, first, a sale by plaintiffs to the Millers; second, a sale by them to the Wilsons. But it fails to show the agency through which sale was finally made to the latter. Touching the negotiations leading thereto, the only information imparted is that upon inquiry by defendant's agent Shryock or Hauck the Wilson's replied that they were no longer interested as purchasers of the property. Williams says he talked to the Wilsons once, perhaps twice, between October, 1907, and March, 1909; but on what account he does not say. Nor must it be necessarily assumed or inferred that his conversations related to a sale of defendant's lands. He then knew that the lands had previously been withdrawn from the market, at least that defendant's officers had so advised Alexander on the former date. They being so withdrawn, he was without authority to negotiate a sale thereof. Besides, the assumption is more reasonable that both he and his associate Alexander were then engaged, if in fact engaged at all, in an effort to sell as agents of McGraw and McClintic and for themselves as owners of integral parts of the boundary exclusive of defendant's lands. Where there is no proof of fraudulent or unfair revocation of authority, either under an option or a contract of agency, the revocation is effective, and a sale or purchase thereunder does not become absolute unless the owner consents thereto. A sale by the owner operates as such revocation. Dyer v. Duffy. 39 W. Va. 148.
That plaintiff Alexander treated the telegram as an option is apparent from his own testimony. He sold to the Millers, and sought to secure the title in his name or under his control, that he might convey direct to the...
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