The Putnam Investment Company v. King

• Citation: 96 Kan. 109,150 P. 559
• Decision Date: 10 July 1915
• Docket Number: 19,141
• Parties: THE PUTNAM INVESTMENT COMPANY, Appellee, v. H. C. KING, Appellant
• Court: Kansas Supreme Court

150 P. 559

96 Kan. 109

THE PUTNAM INVESTMENT COMPANY, Appellee, v. H. C. KING, Appellant

No. 19,141

Supreme Court of Kansas

July 10, 1915

Decided July, 1915.

Appeal from Jackson district court; OSCAR RAINES, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. AGENCY--Sale of Public Lands--Contract--Commissions. In the employment of a broker to procure a purchaser for certain lands it is held that the agreement did not contemplate a sale of public lands in contravention of the federal laws.

2. SAME--Purchaser Procured--Owner's Ground for Refusal to Complete Sale--Waiver of Other Grounds. A competent purchaser was procured by the broker, and when the landowner was notified that one had been found that was ready, able and willing to buy the land on the agreed terms he refused to complete the sale, basing his refusal upon certain objections, and upon the trial of an action brought by the broker to recover the commission the landowner asserted other grounds. Held, that having put his refusal to complete the sale on particular grounds he, in effect, waived any defenses based upon other grounds. Held, also, that the reasons asserted when the refusal was made or those subsequently set up in the trial were not good grounds for his refusal.

3. SAME--Agreement to Convey Land--Warranty Deed Implied. If an agreement for the sale of land does not specify nor indicate the character of the conveyance to be made the law will imply that a deed with the usual covenants of warranty is to be executed.

W. F. Challis, of Westmoreland, Lee Monroe, James A. McClure, and C. M. Monroe, all of Topeka, for the appellant.

C. W. Burch, and B. I. Litowich, both of Salina, for the appellee.

OPINION

JOHNSTON, C. J.:

This was an action by The Putnam Investment Company, a corporation engaged in the real-estate brokerage business, against H. C. King for the recovery of a commission. From a judgment in favor of the plaintiff King appeals.

The case has been here twice before (Putnam v. King, 82 Kan. 216, 107 P. 559; 87 Kan. 842, 126 P. 1093), and in the former of these appeals the principal facts involved are concisely stated. King owned 2720 acres of land and in connection with this land he used 160 acres of government land upon which his son had filed. He verbally agreed with the manager of the plaintiff to the effect that plaintiff should find a purchaser for the land and retain all over $ 8000 as commission. A party able and willing to purchase the interest which King had in the land for $ 10,800 was found by the plaintiff, and King then declined to make a conveyance. After several trials in the Pottawatomie district court a change of venue was granted and the case was tried in Jackson county, resulting in a judgment for the plaintiff. Defendant's demurrer to the evidence of plaintiff was overruled as was also his motion for a new trial.

It is first insisted that the plaintiff can not recover because the contract made by plaintiff in behalf of defendant included the sale of government land. It sufficiently appears that no one contemplated a sale or purchase of public land. When the contract was made between plaintiff and defendant it was mentioned that 2720 acres was subject to sale and that 160 acres used in connection with the larger tract was government land upon which the defendant's son had a filing. Of course, any attempt to sell or mortgage government land is contrary to statute as well as public policy and would be without effect. While this quarter section of land was spoken of as a part of the ranch it was understood that it was government land and therefore not subject to sale. It was equally well known that improvements as well as certain preferences of one having a filing upon government land were subject to be transferred. It has been said that:

"Under the laws of the United States, and the rules of the land department, the entryman is entitled to commutation in several forms, and to certain preference rights, and may also relinquish and sell his improvements and equities in the homestead to another. The relinquishment must, of course, be made to the United States; but under the rules and practice of the land department it may be made so as to fully protect the transferee, if he be a qualified person, to the same right which his vendor enjoyed." (B. K. & S.W. Rld. Co. v. Johnson, 38 Kan. 142, 151, 16 P. 125; James S. Moore v. Daniel M. McIntosh, 6 Kan. 39; Bell v. Parks, 18 Kan. 152; Lapham v. Head, 21 Kan. 332; Hardesty v. Service, 45 Kan. 614, 26 P. 29.)

There was some talk between the parties about the son perfecting his title or giving a relinquishment if it was not perfected, but the evidence of the plaintiff was that the purchaser was to get just such interest as the defendant could give, and if he had no interest in the tract the purchaser would get nothing. When the plaintiff bargained with the proposed purchaser a writing was made which purported to include 2880 acres, and the plaintiff attached the defendant's name to the writing without authority. This writing was, of course, invalid in that it included the 160-acre tract of government land, but that writing is not the basis of this action. The action brought rests upon the agreement that plaintiff was to find a purchaser for the four and a quarter sections of land and such interest as the defendant might have in the other quarter, together with the compliance by the plaintiff with the terms of that agreement. The plaintiff and the purchaser soon discovered that the writing as drawn was invalid, and it was never brought to the attention of defendant nor did he learn of the existence of the writing until after the litigation had been begun. Besides, the agreement actually made with Shellabarger, the purchaser, did not undertake to sell government land nor to make a transfer of it in contravention of the federal laws. It may also be said that defendant did not decline to carry out his agreement nor to transfer the land to the purchaser on account of the terms of this writing, and he could not well have based his refusal on that ground as he admitted that he did not see the contract until the first trial of this case.

The next contention of the defendant is that the plaintiff did not procure a purchaser for the land who was ready and willing to buy on the terms agreed upon. There is no substantial dispute that the plaintiff was empowered by defendant to find a purchaser for the land and very little as to the terms of the agreement made between them when the land was listed with plaintiff. The defendant prescribed...