OPINION
FAWCETT, J.
Plaintiff
brought suit in the district court for Scott's Bluff
county for the specific performance of a contract of sale
from defendant to plaintiff of the southwest quarter of
section 7, township 21, range 53, in that county. From a
judgment in plaintiff's favor, defendant appeals.
Succinctly
stated, the correctness of the judgment depends upon the
question whether plaintiff ever unconditionally accepted any
offer to sell made by defendant, or defendant ever
unconditionally accepted any offer to purchase made by
plaintiff.
The
negotiations between defendant, who resided in Chicago, and
plaintiff, who resided in Scott's Bluff county, were
conducted by one John C. Trotter, a real estate agent, who
also resided in Scott's Bluff county. Some time about or
shortly prior to June 1, 1908, defendant gave Mr. Trotter the
following written authorization: "Mr. Trotter is
authorized to sell my place adjoining town of Minatare for $
105 an acre, within six months from June 1st,
1908. 1/2 cash if he can get it, not less than $ 6,000 cash
in any case, the remainder at 7% secured by first mortgage on
the farm. Mr. Trotter to receive the regular commission of $
50 on the first thousand and $ 25 on each succeeding thousand
dollars of the purchase price. (signed) Laura S. T.
Cox." On this memorandum Mr. Trotter indorsed the
following: "I hereby accept the selling of the within
named place or farm in accordance with the terms within
named. (signed) John C. Trotter." Mr. Trotter did not
succeed in selling the farm within the six months, and on
December 4, 1908, defendant wrote him as follows: "My
Dear Mr. Trotter: Ever since I received your letter, have
been trying to decide what should be done about this matter.
It is like this to me. I feel that I must have the $ 16,000
clear. Perhaps if you show this letter to your buyer, he will
realize that you are not trying to deceive him in any way
about the commission. If he will pay me $ 16,000 and your
regular commission, abstract fees and any other expense of
the transfer which may not occur to me, I am rather inclined
to let it go, provided he will pay $ 3,000 or $ 4,000 down
when he gets deed and possession. I would not feel safe to
take less down than $ 3,000. If he will be able to do this by
March 1st, the sale can wait till that time. My tenant gets a
forfeit from me if I sell under three seasons, and this I
will pay. Your client can see that at $ 105 per acre I should
get a mere trifle above $ 16,000, but I am not so determined
about this that I might not let it go, if other conditions
suited." On February 22, 1909, Mr. Trotter not having
effected a sale, defendant wrote him as follows: "My
Dear Mr. Trotter: Have been thinking some more about the farm
deal and decided should your man be of the same mind still
that I would write and offer to split the commission and
transfer expenses with him, that is, he to pay $ 16,000 for
the place, and one-half of your commission, and any other
transfer expense. If he will pay down not less than $ 3,000,
or as much more as he chooses, and $ 3,000 more
in a year from time of sale, he can have any reasonable time
on the remainder at 7 per cent. He can have until May 1st to
do this, if he wants to do it. But as you know, I'm not
anxious at all about selling, so it is all right, if he
don't agree to my proposition. I would not take less than
$ 3,000 down, and would prefer $ 4,000."
All of
the authority conferred upon Mr. Trotter on or prior to April
19, 1909, is contained in the written memorandum and two
letters above set out. On the last named date negotiations
between plaintiff and Trotter were reduced to writing, as
follows: "Minatare, Nebraska, April 19, 1909. This
contract and agreement entered into by and between Laura S.
T. Cox, party of the first part, and S. R. Roberts, of
Scott's Bluff, party of the second part, witnesseth: That
for and in consideration of the sum of $ 16,425 to be paid by
the said party of the second part, to the said party of the
first part in the time and manner hereinafter specified, the
said party of the first part has agreed to sell, and convey
to the said party of the second part the following described
land in Scott's Bluff county, Nebraska, to wit, the
southwest one-fourth of section seven, township twenty-one,
range fifty-three, less ten acres already sold on north side,
but still containing one hundred and sixty acres. And the
said party of the second part has agreed to purchase all of
the above described land, and to pay for the same the said
sum of $ 16,425 in cash, as follows, $ 100 cash in hand at
the signing of this contract, the receipt whereof is hereby
acknowledged, and that $ 2,900 be paid on June first, 1909.
And $ 3,000 June first, 1910. Interest at 7% per annum, and $
10,425 to be paid June 1st, 1914, interest 7 per cent. per
annum. And it is further agreed that at the time of payment
of $ 2,900 June first, 1909, party of the first part will
convey by good and sufficient
warranty deed, the above described real estate, consisting of
one hundred and sixty acres together with all the
improvements belonging to her, thereon, together with four
shares of Minatare Mutual Ditch stock. The party of the first
part hereby agrees that party of the second
part shall have and collect the rent from said premises for
the year 1909. And the party of the first part hereby agrees
to furnish abstract showing clear title to all of said land,
in the said party of the first part at the time of said
transfer, and further agreed to give party of the second part
possession of said premises March first, 1910. And it is
further agreed that the covenants and agreements herein
contained shall be binding on the heirs, executors and
assigns of the parties hereto. In witness whereof, the said
parties have caused these presents to be executed in
duplicate and have hereunto set their hands this 19th day of
April, 1909. In presence of J. C. Trotter. (signed) S. R.
Roberts."
On the
same day Mr. Trotter made and delivered to plaintiff a
receipt as follows: "April 19, 1909. Received of S. R.
Roberts check for $ 100 for payment on land S.W. 1/4 sec.
7-21, as per contract of this date. J. C. Trotter."
On May
9, after having received the proposed contract of April 19
defendant wrote Mr. Trotter as follows: "My Dear Mr.
Trotter: Your note and contract for deed came to hand as well
as the telegram, but you must have mistaken the sense of the
agreement I made to sell quite a little. No one that I know
of out there has given more than two shares of water with...
