Sullivant v. Jahren

• Decision Date: 11 March 1905
• Docket Number: 14,000
• Citation: 79 P. 1071,71 Kan. 127
• Parties: S. L. SULLIVANT v. A. O. JAHREN et al
• Court: Kansas Supreme Court

79 P. 1071

71 Kan. 127

S. L. SULLIVANT v. A. O. JAHREN et al

No. 14,000

Supreme Court of Kansas

March 11, 1905

Decided January, 1905.

Error from Butler district court; GRANVILLE P. AIKMAN, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AGENCY--Real-estate Broker--Scope of his Authority. A real-estate broker or agent is one who negotiates sales of real estate. His business generally is to find a purchaser who is willing to buy on the terms fixed by the owner; that is, to bring the owner and a purchaser together. He has no implied authority to bind the principal by signing a contract of sale. Nor has he such authority to fix terms of sale, time of possession, or the covenants to be contained in the deed. Nor can he materially change the terms of sale fixed by the principal, without the latter's consent. He is a special agent, and must pursue his instructions and act within the scope of his limited powers; and those who deal with him, if he exceed his authority, do so at their peril.

2. AGENCY--Agent's Authority Held a Question of Law. The authority given by the owner of the land to his agent in this case was all embodied in letters and a telegram. Not being ambiguous, what they mean is a question of law and not of fact, and this court is not hampered by the findings of fact made by the trial court as to the meaning of these writings.

Henry E. Ganse, and H. W. Schumacher, for plaintiff in error.

Hamilton & Leydig, and E. N. Smith, for defendants in error.

CLARK A. SMITH, J. All the Justices concurring.

OPINION

CLARK A. SMITH, J.

A. O. Jahren brought this suit in the district court of Butler county against his codefendant in error, Theodore Weyant, and the plaintiff in error (to whom Weyant had conveyed the land), for the specific performance of a contract of sale of certain land in that county from Weyant to Jahren. Judgment was rendered for the plaintiff below, and Sullivant brings the case to this court for review.

On May 30, 1898, Weyant wrote a letter dated at Columbus, Ohio, where he resided and continued to reside during all the negotiations in question, and addressed the same to "Real-estate Agent, Rosalia, Butler county, Kansas," which letter came into the hands of J. C. Songer, a real-estate agent of that place. The letter described the land in controversy, about 960 acres, and related to the leasing of the same, except these words: "Or, if you have a customer who wants to purchase, the land is for sale."

Having received an answer from Songer in the meantime, on June 13, 1898, Weyant wrote a postal card to Songer in which the only reference to the sale of the land was the following:

"What had this land ought to sell for? Have you a customer that would buy, or give a good trade? If so, let me know."

A number of letters passed between Songer at Rosalia, Kan., and Weyant at Columbus, Ohio, in regard to the price of the land and prospective purchasers, but nothing conferring any authority by any possible construction, or as to a definite proposition of sale, until the following letter:

"COLUMBUSUS, OHIO, June 4, 1900.

"J. C. Songer, Rosalia, Kan.:

"DEAR SIR--Regarding the 960 acres of land in your county, I instructed Mr. S. E. Black, of El Dorado, to lease the land for the grass season of 1900, but to make the lease subject to sale, which I suppose was accordingly done. . . . I will sell your customer the 960 acres of land at $ 2.50 per acre [the price offered by him], subject to the lease made as above stated, and for this sale I will give you a commission of $ 75. This sale is to be for cash, upon delivery of deed and abstract showing good title, at the bank of El Dorado, Kan.

"Please reply to this at once, and oblige,

Yours respectfully, THEO. WEYANT.

"Advise me as to consideration and to whom you want deed."

To which Songer replied as follows:

"ROSALIA, KAN., June 11, 1900.

"Theodore Weyant, Columbus, Ohio:

"DEAR SIR--Yours of June 4 regarding the 960 acres in this county received.

"My customer has been gone till yesterday. I have seen him and he says he will not pay $ 2.75 or $ 2.62 1/2 per acre for the land. There is no use to try to get any more out of him for the land. He is trying to deal for other land here, and says if he gets it he does not want your land. Now, I do not feel like taking less than five per cent. commission for making the sale.

"You are getting from $ 500 to $ 700 more for your land than it can be sold to any one else for, and getting the cash for the land. I told him what you had offered me as commission, and that I would not take less than five per cent., and if he would pay me enough over the $ 2.50 per acre above what you offered me to make my commission five per cent. that I would submit to you the proposition. He finally agreed to pay me enough over what you offered me to make my commission five per cent. Now, if that is satisfactory with you, telegraph me on receipt of this, so that I can close the deal with him before he makes other purchases, as he only agreed to wait a few days.

"Make deed to A. O. Jahren, consideration $ 2400, and send deed and abstract showing good title to Farmers' and Merchants' National Bank, El Dorado, Kan., to be delivered upon payment of the $ 2.50 per acre, less the $ 75 to be paid to me as commission.

Yours respectfully, J. C. SONGER.

"P. S.--Instruct bank to pay me the $ 75."

To which Weyant replied with the following telegram:

"Received at S 4:30 P. M. 6-13-189..

"Dated Columbus, Ohio, 13.

"To J. C. Songer, Rosalia, Kan.: Accepted; particulars by letter; papers sent to bank.

THEO. WEYANT."

On the same day Weyant wrote and mailed the following letter:

"COLUMBUSUS, OHIO, June 13, 1900.

"J. C. Songer, Rosalia, Kan.:

"DEAR SIR--Replying to your letter of June 11, I will accept $ 2400 for the 960 acres of land, and pay you $ 75 commission.

"I will give warranty deed for the land, free from encumbrance, excepting the lease made by S. E. Black, who was instructed to lease the land subject to sale. Abstracts and other papers will be sent to the Farmers' and Merchants' Bank of El Dorado, with instructions to turn the papers over on receipt of $ 2400, out of which you are to have $ 75 commission. My interest in the lease will be assigned to your purchaser.

"There is some taxes to be paid, but I will instruct the bank to deduct the amount, whatever it is, from the $ 2400.

"Regarding the lease above referred to, Black was instructed to lease the land subject to sale, which, if done as instructed, would not affect our deal, as Black wrote me that he had leased the land, according to instructions, at fifteen cents per acre.

"The papers will go forth to-day to the bank, and the deal can be closed up without delay.

Yours very respectfully, THEO. WEYANT."

There were no personal interviews between Songer and Weyant, and these are the only writings that could bear upon Songer's authority as agent of Weyant.

Three days after the date of this last letter and telegram, and after such letter and telegram had been received at Rosalia, Kan., Songer undertook, as the agent of Weyant, to execute with A. O. Jahren a written contract, signed by Jahren and by Songer, affixing Weyant's name thereto by himself, as agent. Among the provisions of that contract is the following:

"In...