Rhode v. Gallat

• Decision Date: 16 December 1915
• Citation: 70 Fla. 536,70 So. 471
• Parties: RHODE v. GALLAT.
• Court: Florida Supreme Court

70 So. 471

70 Fla. 536

RHODE v. GALLAT.

Florida Supreme Court

December 16, 1915

Rehearing Denied Jan. 12, 1916.

Appeal from Circuit Court, Dade County; H. Pierre Branning, Judge.

Suit by Frank Gallat against Paul P. Rhode, as executor of the estate of John Polaski, deceased. From decree for complainant defendant appeals. Reversed, with directions.

Syllabus by the Court

SYLLABUS

It is well settled that an agent, empowered to sell land and to bind his principal by a written memorandum or contract for its sale, is a special agent, and that all persons dealing with him for the purchase of such land are charged with notice of the terms and limitations of his authority as such agent to sell the same. And where the agent is authorized to sell land, one-fourth and the balance to be payable in one two, and three years with stipulated interest on the deferred payments, he transcends his authority when he makes a contract for its sale that provides that such deferred payments shall be made on or before one, two, and three years, respectively, and that such deferred payments may be made at any time at the option of the purchaser, and his principal is not bound by such unauthorized contract.

The written memorandum for the sale of land required by the statute of frauds cannot rest partly in writing and partly in parol, but the written memorandum must disclose all the terms of the sale.

A real estate agent or broker in whose hands an owner places lands for sale, or who is employed to sell lands, does thereby acquire an agreement of sale of such lands. The inference that such real estate agent or broker has been endowed by his principal with authority to bind him in a written agreement of sale cannot be drawn from circumstances entirely consistent with his employment as a mere agent and broker nor without other circumstances, clearly indicating the grant of such greater authority.

COUNSEL L. R. Railey and A. J. Rose, both of Miami, for appellant.

Geo. A. Worley & Son, of Miami, and Jones & Mitchell, of Titusville, for appellee.

OPINION

TAYLOR J.

The appellee, Frank Gallat, filed his bill in equity in the circuit court of Dade county, against the appellant, Paul P. Rhode, as executor of the estate of John Polaski, deceased, for specific performance of an alleged contract for the sale of real estate. The cause was referred to a master to take testimony, who reported the testimony to the court, and the court below at the final hearing on the pleadings and testimony granted a final decree for specific performance as prayed for in the bill, and from this final decree the defendant below has appealed to this court.

The complainant below based his application for specific performance upon the following written instrument:

'Miami, Florida, Jan. 21, 1913.

'Received of Frank Gallet Five Hundred ($500.00) Dollars to apply on the purchase price of a tract of land owned by John Polaski, deceased, I being the Agent and Atty. of Paul P. Rhode his executor and empowered by said Paul P. Rhode, executor, to sell said tract of about 66 1/2 acres more or less. to be paid as follows, viz.: 1/4 to be paid on delivery of deed and abstract less $500.00 paid above.

'$3,750.00 to be paid on or before 1 year from date of deed

'$3,750.00 to be paid on or before 2 years from date of deed

'$3,750.00 to be paid on or before 3 years from date of deed it being understood the whole sum may be paid at any time. All unpaid sums to bear interest at the rate of eight per cent and to be secured by mortgage. P. L. Ryan.

'Signed and sealed in presence of

E. A. Molkentine.'

This instrument was made by P. L. Ryan, claiming to be the agent of Paul P. Rhode, executor of the estate of John Polaski, deceased, and empowered orally by the said executor to sell the land in question. When questioned as to his authority to sell the same, P. L. Ryan testified distinctly that Rhode, the executor, gave him authority orally to sell the same on the following terms, viz.:

'The sale was to be not less than 1/4 down and the balance one two and three years at 8% interest on deferred payments.'

It is well settled that an agent empowered to sell land is a special agent, and that all persons dealing with him in reference to such land are charged with notice of the terms and limitations of his authority as such agent to sell the same. And where the agent is authorized to sell land one-fourth of the purchase price to be paid in cash, and the balance payable in one, two, and three years, with interest on the deferred payments at 8 per cent. per annum, he transcends his authority when he makes a contract for its sale that provides that such deferred payments shall be made on or before one, two, and three years, respectively, and that such deferred payments may be made at any time and his principal is not bound by such unauthorized contract. Jackson v. Badger, 35 Minn. 52, 26 N.W. 908; Hartenbower v. Uden, 242 Ill. 434, 90 N.E. 298, 28 L. R. A. (N. S.) 738. In which cases it is held that the written memorandum for the sale of land required by the statute of frauds cannot rest partly in writing and partly in v. Kill, 144, Ill. 248, 33 N.E. 43; Oliver v. Sattler, 233 Ill. 536, 84 N.E. 652; Swift v. Erwin, 104 Ark. 459, 148, S.W. 267, Ann. Cas. 1914C, 363; Balkema v. Searle, 116 Iowa, 374, 89 N.W. 1087; 1 Mechem on Agency (2d Ed.) § 807, and authorities there cited; Halsey v. Monteiro, 92 Va. 581, 24 S.E. 258. It is further well settled that specific performance will not be enforced where the contract does not designate with certainty the lands to be conveyed, and that parol proof is indamissible to supply a description of the land not identified in the writing. Patrick v. Sears, 19 Fla. 856; Carr v. Passaic Land Improvement & Building Co., 22 N. J. Eq. 85; Fordyce Lumber Co. v. Wallace, 85 Ark. 1, 107 S.W. 160; McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649. In the case of Breaid v. Munger, 88 N.E. 297, it is held that a contract of purchase of land will not be specifically executed, where the memorandum thereof contains the words 'one hundred acres,' but fails to describe its boundaries. This imperfect description is a fatal Neb. 197, 86 N.W. 1082. In the case of Eaton v. Wilkins, 163 Cal. 742, 127 P. 71, it is held that:

'The description of the land to be conveyed is one of the most essential parts of an agreement to sell. Such a contract must be in writing, * * * and must contain such description of the land, either in terms or by reference, that the property may be identified without resort to parol evidence.' Cole v. Cole, 99 Miss. 335, 54 So. 953, 34 L. R. A. (N. S.) 147, Ann. Cas. 1913E, 332; Shelton v. Church. 10 Mo. 774; Nippolt v. Kammon, 39 Minn. 372, 40 N.W. 266; Knight v. Alexander, 42 Or. 521, 71 P. 657.

In the case of ...