Robinson v. Sullivan

• Decision Date: 12 January 1929
• Docket Number: 28,362
• Citation: 273 P. 461,127 Kan. 248
• Parties: M. P. ROBINSON, Appellant, v. MARION SULLIVAN, Appellee
• Court: Kansas Supreme Court

273 P. 461

127 Kan. 248

M. P. ROBINSON, Appellant, v. MARION SULLIVAN, Appellee

No. 28,362

Supreme Court of Kansas

January 12, 1929

Decided January, 1929.

Appeal from Marshall district court; FRED R. SMITH, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. VENDOR AND PURCHASER--Authority of Agent. In an action for damages for failure to convey real estate the evidence considered and held sufficient to sustain the verdict and judgment.

2. APPEAL AND ERROR--Review of Evidence--Necessity for Presentation on Motion for New Trial. Error cannot be predicated on the exclusion of evidence unless such evidence is presented by affidavit or otherwise on the hearing of the motion for a new trial, as required by the statute. (R. S 60-3004.)

Hal E. Harlan and A. M. Johnston, both of Manhattan, for the appellant.

W. W. Redmond and P. G. Wadham, both of Marysville, for the appellee; W. J. Gregg, of Frankfort, of counsel.

Hopkins J. Johnston C. J., not sitting.

OPINION

HOPKINS, J.:

The action was one for damages for failure of defendant to convey a town lot in Blue Rapids. The defendant prevailed and plaintiff appeals.

The plaintiff alleged in substance that he offered in writing to purchase the property for $ 450 cash. That the defendant owned an undivided interest therein and purported to be the agent and representative of the other owners, and did, on January 15, 1926, accept in writing the offer of the plaintiff to convey the lot in question for $ 450. The defendant alleged that the lot was owned jointly by her sister, brother, and herself as tenants in common, the three having derived title from their mother. The plaintiff contends that while the action was not brought on the theory that the defendant was actually authorized in writing to sell the property, that "the question as to whether or not the defendant held herself out as the authorized agent of her brother and sister must be settled from the correspondence of the parties." However, it appears that the trial proceeded on the theory that the alleged agency was a fact to be determined by the jury from all of the evidence, oral and written.

The defendant, among other things, testified substantially that her name was formerly Marion Riddle; that she had been living in Phoenix, Ariz.; that she had not resided in Blue Rapids since 1899 or 1900; that she had known the plaintiff a good many years and had had a good many conversations with him with regard to the lot; that she and her brother, Horace Riddle, and her sister, Caroline Merling, owned the lot; that she was never authorized by her brother or sister at any time to act as their agent for the purpose of making a sale, and that she had no authority to sell without their consent.

A portion of her cross-examination follows:

"Q. You say in these conversations, that he (plaintiff) knew that your brother and sister had an interest in the property? A. He did.

"Q. Did you ever tell him that? A. Yes, sir.

"Q. And you always told him that? A. It was discussed several times. I don't remember on which occasion. . . . I had no authority to sell without their consent.

"Q. And do you say that you told that to Mr. Robinson each time? A. No, sir.

"Q. Did you ever tell him that? A. Yes, sir.

. . . .

"Q. Have you any idea when or in what connection? A. It was discussed in Manhattan. I told him I absolutely knew my sister wouldn't sell at that price, and I couldn't sell without her consent. . . .

"Q. Did you write him anything else in connection with this letter, to let him know that you didn't have the authority to sell this lot? A. We had discussed it verbally, and he knew I didn't have the authority."

There was other evidence, which need not be set out, to the effect that the defendant informed the plaintiff she had no authority to sell without the consent of her brother and si...