Thompson v. Burns

• Decision Date: 19 December 1908
• Citation: 99 P. 111,15 Idaho 572
• Parties: GAYLORD W. THOMPSON, Plaintiff and Respondent, v. WALTER J. BURNS et al., Defendants and Appellants, and F. W. KETTENBACH, Defendant and Respondent
• Court: Idaho Supreme Court

99 P. 111

15 Idaho 572

GAYLORD W. THOMPSON, Plaintiff and Respondent, v. WALTER J. BURNS et al., Defendants and Appellants, and F. W. KETTENBACH, Defendant and Respondent

Supreme Court of Idaho

December 19, 1908

REAL ESTATE, CONTRACT FOR SALE OF-SPECIFIC PERFORMANCE-STATUTE OF FRAUDS - EVIDENCE CLEAR AND SATISFACTORY - DEED A MORTGAGE-PAROL EVIDENCE-FINDINGS-INSUFFICIENCY OF EVIDENCE-WRITTEN AUTHORITY OF AGENT-OFFER-ACCEPTANCE-TIME OF-BINDING FORCE OF DECREE-OPTIONAL WITH PLAINTIFFS-VOID.

1. A court of equity will not decree a specific performance of a contract for the sale of land except upon clear and satisfactory proof.

2. Parol evidence is admissible to show that a deed absolute on its face is in fact a mortgage.

3. Held, that the finding of fact to the effect that the contract sued on was made on the 14th of September, 1905, is not supported by the evidence.

4. Held, that the evidence is not sufficient to show that any valid contract was ever entered into for the sale of the real estate described in the complaint.

5. If an offer to sell real estate is made by telegram, the answer must be within the time specified, and if no time is specified, it must be answered within a reasonable time, and an offer by telegram impliedly requires a quick reply by telegram.

6. An offer by telegram, sent and received on the 4th of November requesting a quick answer, held, that an acceptance of the offer on the 11th of November is too late.

7. Under the provisions of sec. 6007, Rev. Stat., no estate or interest in real property other than for leases for a term not exceeding one year, nor any trust or power over or concerning it or in any manner relating thereto, can be created, granted, assigned, surrendered or declared otherwise than by operation of law; or a conveyance or other instrument in writing subscribed by the party creating, granting assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing.

8. To comply with such section, the writing must state the contract with such certainty that its essentials will be known from the memorandum itself or by reference contained in it to some other writing, without recourse to parol evidence.

9. In such contracts where the agreement for such sale shows that one of the two persons by whom it is made incurs no individual liability, but acts merely as an agent for some one else who is not named or described, specific performance thereof cannot be compelled at the suit of the principal if his relation to the transaction can only be proved by parol evidence.

10. Held, that the minds of the parties never met, and that no definite and certain contract was ever entered into between the parties.

11. When the specific performance of a contract is decreed, the contract is merged into the decree, and the decree must not be so entered as to leave it optional with the plaintiff whether he performs his part or not.

12. A decree for specific performance must not be so entered as to be an option on behalf of either party.

13. The evidence is insufficient to sustain the findings of the court and the judgment, and therefore the plaintiff is not entitled to a specific performance of the alleged contract.

(Syllabus by the court.)

APPEAL from the Second Judicial District, for Nez Perce County. Hon Edgar C. Steele, Judge.

Action to enforce a specific performance of an alleged contract for the sale of real estate. Judgment for the plaintiff. Reversed.

Reversed and remanded with instructions. Costs awarded to appellants.

James E. Babb, for Appellants.

A broker's authority to find a purchaser and in a sense make sale of the property does not authorize him to execute for the vendor a contract of sale. His authority is exhausted when he has found a purchaser on the vendor's terms (Castner v. Richardson, 18 Colo. 496, 33 P. 163; Brandrup v. Britten, 11 N.D. 376-379, 92 N.W. 453; Glentworth v. Luther, 21 Barb. 145; Morris v. Ruddy, 20 N.J. Eq. 236; Armstrong v. Lowe, 76 Cal. 616, 18 P. 758; Halsey v. Monteiro, 92 Va. 581, 24 S.E. 258; Holmes v. Redhead, 104 Iowa 399, 73 N.W. 878; Everman v. Herndon, 71 Miss. 823, 15 So. 135; Stengel v. Sergeant (N. J.), 68 A. 1106.)

Wherever the market value of lands is increasing rapidly and all the parties are dealing in them as a speculation, time, in negotiation and in performance of the contract, is of the essence. (Myers v. League, 62 F. 654, 10 C. C. A. 571; Goldsmith v. Guild, 92 Mass. 239; Pickering v. Pickering, 38 N.H. 400; Spaulding v. Fierle, 86 Hun, 17, 33 N.Y.S. 402; Waterman v. Banks, 144 U.S. 394, 12 S.Ct. 646, 36 L.Ed. 479; Settle v. Winters, 2 Idaho 226, 10 P. 216.)

An offer must be answered within the time specified. (Minn. Linseed Oil Co. v. Collier White Lead Co., 4 Dill. 431, F. Cas. No. 9635; Ortman v. Weaver, 11 F. 358; Bowen v. McCarthy, 85 Mich. 26, 48 N.W. 155; Larmon v. Jordan, 56 Ill. 204; Maclay v. Harvey, 90 Ill. 525, 32 Am. Rep. 35; Clark on Contracts, p. 40; James & Sons v. Marion Fruit Jar & Bottle Co., 69 Mo.App. 219; Taylor v. Rennie, 35 Barb. 272.)

Parol evidence is admissible to show that a deed absolute upon its face is a mortgage. (1 Jones, Mortgages, secs. 282-342; 2 Devlin, Deeds, 1st ed., sec. 1136; Smith v. Smith, 80 Cal. 323, 21 P. 4, 22 P. 186, 549.)

"One who seeks to enforce specific performance of a contract is bound to establish clearly and satisfactorily the existence of the contract and its terms. If the testimony be contradictory or doubtful, a decree for specific performance will be refused. (Deeds v. Stephens, 10 Idaho 336-338, 79 P. 77; Gates v. Gamble, 53 Mich. 181, 18 N.W. 631; Wright v. Weeks, 25 N.Y. 153; Johnson v. Kellogg, 7 Heisk. (Tenn.) 262; Gault v. Stormont, 51 Mich. 636, 17 N.W. 214; Potts v. Whitehead, 20 N.J. Eq. 55; Schmeling v. Kriesel, 45 Wis: 325; Manning v. Ayres, 77 F. 690, 23 C. C. A. 405; 22 Am. & Eng. Ency. Law, 1006.) "Specific performance of a contract will not be decreed where there is strong doubt whether the parties understood the contract alike." (Coles v. Browne, 10 Paige Ch. (N. Y.) 526; 22 Am. & Eng. Ency. Law, 1017, 1023, 1075.)

The requirements of secs. 6007 and 6009, Rev. Stat., were not complied with in the alleged contract of sale. (Brewer v. Horst-Lackmund Co., 127 Cal. 643, 60 P. 418, 50 L. R. A. 240, and notes; Mentz v. Newwitter, 122 N.Y. 491, 19 Am. St. Rep. 514, 25 N.E. 1044, 11 L. R. A. 97; Brown v. Whipple, 58 N.H. 229; Grace v. Denison, 114 Mass. 16; Kingsley v. Siebrecht, 92 Me. 23-33, 69 Am. St. Rep. 486, 42 A. 249; Nichols v. Johnson, 10 Conn. 192; Phillips v. Adams, 70 Ala. 373; Harney v. Burhans, 91 Wis. 348, 64 N.W. 1031; Ryan v. United States, 136 U.S. 68-83, 10 S.Ct. 913, 34 L.Ed. 447; Webster v. Brown, 67 Mich. 328, 34 N.W. 676; Williams v. Morris, 95 U.S. 444, 24 L.Ed. 360; Abba v. Smyth, 21 Utah 109, 59 P. 756; Sanders v. Pottlitzer Pressed Fruit Co., 144 N.Y. 209, 43 Am. St. Rep. 757, 39 N.E. 75, 29 L. R. A. 431, and notes, p. 433.)

Written authority of the agent has not been shown, and this is necessary under the Idaho statute and in any transactions where a like statute exists. (Reagan v. McKibben, 11 S.D. 270, 76 N.W. 943; Brandrup v. Britten, 11 N.D. 376, 92 N.W. 453; O'Shea v. Rice, 49 Neb. 893, 69 N.W. 308; Roth v. Goerger, 118 Mo. 556, 24 S.W. 176; Power v. Immigration Land Co., 93 Minn. 247, 101 N.W. 161; Baldwin v. Schiappacasse, 109 Mich. 170, 66 N.W. 1091; Mumford v. McKinney, 21 La. Ann. 547; Kopp v. Reiter, 146 Ill. 437, 37 Am. St. Rep. 156, 34 N.E. 942, 22 L. R. A. 273; Castner v. Richardson, 18 Colo. 496, 33 P. 163; Borderre v. Den, 106 Cal. 594, 39 P. 946; Hall v. Wallace, 88 Cal. 434, 26 P. 360; Myres v. Surryhne, 67 Cal. 657, 8 P. 523; McCarthy v. Loupe, 62 Cal. 299; Duffy v. Hobson, 40 Cal. 240, 6 Am. Rep. 617; Folsom v. Perrin & Dodge, 2 Cal. 602.)

Even if the plaintiff were entitled to a decree in this case, the decree as entered is erroneous. It should have either required the cash payment to be made and the mortgage and note to be delivered as a condition of its entry, or within a short reasonable date thereafter to be fixed by the court, and that, in default thereof, the action should be dismissed. (Hidden v. Jordan, 57 Cal. 184; Thayer v. Wilmington Star Min. Co., 105 Ill. 553; Binns v. Mount, 28 N.J. Eq. 26; Stevenson v. Jackson, 40 Mich. 702; D'Wolf v. Pratt, 42 Ill. 216.)

Geo. W. Tannahill, and W. H. Batting, for Respondent.

"When a person adopts the unauthorized act of another made in his behalf, and has received the benefits accruing therefrom, he is held to adopt and ratify the instrumentalities by which the fruits were obtained." (Busch v. Wilcox, 82 Mich. 336, 21 Am. St. Rep. 563, 47 N.W. 328; and cases cited; Johnson v. Jones, 4 Barb. 369; Eagle Bank v. Smith, 5 Conn. 71, 13 Am. Dec. 37; Griggs v. Seldon, 58 Vt. 561, 5 A. 504; Collins v. Cooper, 65 Tex. 460; Hubbard v. Tenbrook, 124 Pa. 291, 10 Am. St. Rep. 585, 16 P. 877, 2 L. R. A. 823; Harrison v. Missouri P. R. R. Co., 74 Mo. 364, 41 Am. Rep. 318.)

A principal may waive the statute of frauds; waiving the necessity for the contract or the agency to be evidenced by sufficient writings. (Cosand v. Bunker, 2 S.D. 294, 50 N.W. 84; St. Louis K. & N.W. Ry. Co. v. Clark, 121 Mo. 169-177, 25 S.W. 192, 26 L. R. A. 751; Aultman v. Booth, 95 Mo. 383, 8 S.W. 742; Maybee v. Moore, 90 Mo. 343, 2 S.W. 478; Gibson v. Snow Hardware Co., 94 Ala. 346, 10 So. 304.)

The authority of an agent to execute a contract in the name of his principal may be proved by express authorization, or may be inferred from the course of dealing between the parties. (Keim v. Lindly, (N. J.), 30 A. 1063.) A subsequent ratification is equally as effectual as an original authority. (Newton v. Bronson, 13 N.Y. 587, 67 Am Dec. 89, and cases cited;...