Sturgeon v. Culver

• Citation: 124 P. 419,87 Kan. 404
• Decision Date: 08 June 1912
• Docket Number: 17,688
• Parties: J. W. STURGEON, Appellee, v. GEORGE H. CULVER, Appellant
• Court: United States State Supreme Court of Kansas

124 P. 419

87 Kan. 404

J. W. STURGEON, Appellee, v. GEORGE H. CULVER, Appellant

No. 17,688

Supreme Court of Kansas

June 8, 1912

Decided January, 1912.

Appeal from Gray district court.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACT--Agency--Letters--Pleadings--No Departure. In a petition plaintiff set forth certain letters which, it was claimed, constituted a contract of agency. The answer was a denial and an averment that the defendant was not authorized to enter into the contract. The reply met the latter defense and pleaded other correspondence tending to support the contract pleaded in the petition. As the new facts in the reply did not contradict those set forth in the petition it can not be deemed a departure, and the admission in evidence of the additional letters was not error.

2. AGENCY--Commission--Title to Real Estate. It is no defense to an action brought by an agent to recover a commission for negotiating a sale of real estate that the principal does not hold the title to the land.

3. ESTATES--No Debts--No Necessity to Sell Real Estate. Where an estate of a deceased person is in process of settlement and there is no claim filed against the estate nor any debts left by the deceased there is no occasion for the heirs, to whom the real estate descended, to apply to the probate court for authority to sell it. Such authority is only required where the personal estate is insufficient to meet the indebtedness of the deceased.

D. B Fuller, for the appellant.

Thomas A. Scates, and Albert Watkins, for the appellee.

OPINION

JOHNSTON, C. J.:

J. W. Sturgeon brought this action against George H. Culver to recover a commission of $ 240 for finding a purchaser of what is spoken of as the Culver farm. He recovered the amount claimed and Culver appeals.

The land was owned by Asa Culver at the time of his death, and the appellant, who was a son and heir, was appointed as administrator of the estate. It was contended that an agreement was made between appellant and appellee to the effect that if the latter would find a purchaser for the Culver farm at a fixed price appellant would pay a commission of two and one-half per cent of the sale price. On the other hand appellant insists that, although negotiations were had a contract was not consummated; and, further, that the administrator had no authority to make a binding contract to pay a broker's commission. The principal contention here is that the correspondence and negotiations between the parties, as alleged and proven, did not amount to a contract. In his petition appellee set forth three letters of appellant relating to the sale of the land as the evidence of the agreement. In his answer appellant denied that the contract sued on was made, and he specifically alleged that it was not consummated by the letters set out in the petition, and also that in the negotiations he acted in an official capacity. In a reply appellee admitted that appellant was an administrator, but alleged that the contract was made by appellant in his personal capacity, and that certain letters showed that proceedings in the probate court were not necessary to authorize a sale of the land or to warrant the making of the contract in question; and, further, that certain letters of appellant, other than those quoted in the petition, disclosed more completely the making and consummation of the contract. Appellant complains of the admission in evidence of letters written by appellant to appellee before and after the date of those set forth in the petition, and also of the conversations had after the letters were...