Townsend v. Kennedy
| Decision Date | 02 October 1894 |
| Citation | 60 N.W. 164,6 S.D. 47 |
| Parties | TOWNSEND v. KENNEDY. |
| Court | South Dakota Supreme Court |
Syllabus by the Court.
1. When plaintiff alleges ownership of real property in his complaint, and the same is denied in the answer, evidence of a witness (admitted without objection on the ground that the question is incompetent) that the plaintiff was "the owner, to his knowledge," and this is undisputed, is sufficient to support a finding that the plaintiff was the owner.
2. When persons assume to act for another by the execution of a written contract for the sale of real property, and the act is ratified by the principal, by executing the deed provided for in the contract with full knowledge of its terms, he will be thereafter estopped to deny his liability under the contract, and such a ratification renders the contract as valid as though he had given the agents written authority to execute the contract.
3. The note or memorandum in writing required by the statute of this state to render a contract for the sale or purchase of real estate valid may be made subsequent to the actual contract and may be contained in various writings, letters, papers and documents, provided that the substance of such contract can be ascertained from the writings themselves.
4. A formal statement of the terms of the contract by the party sought to be charged is not absolutely indispensable. There are other modes equally conclusive upon the party sought to be charged.
5. A memorandum agreement signed by a firm of real-estate agents reciting that $100 has been received from K. in part payment for certain city lots therein described, and containing the terms of the purchase, delivered to and retained by K.; an abstract of the title to the lots, delivered to and retained by K.; a check for $900 signed by K., and deposited as an escrow under the terms of the agreement; notes and a mortgage drawn up in accordance with the terms of the agreement, and forwarded to K., inclosed in a letter to which he replies in writing; a letter inclosing such notes and mortgage, and requesting K. to execute the same, and in which letter the agents state, "The deed to the lots you purchased is here," and to which letter K. replies by letter "Yours of the 16th inst. at hand, inclosing notes and mortgage for my signature," and in which K. makes no objection to the notes or mortgage, or the statement, "lots which you purchased," but simply requests the agents to obtain from the owner the terms of a cash payment, instead of the notes and mortgage,--taken and considered together, constitute sufficient evidence of a note or memorandum in writing of the alleged agreement subscribed by K. to justify the finding of the trial court that the alleged agreement was in writing, and subscribed by K.
Appeal from circuit court, Hughes county; H. G. Fuller, Judge.
Action by Luther T. Townsend against Charles B. Kennedy to enforce specific performance of a contract for the purchase of land. Judgment for plaintiff, and defendant appeals. Affirmed.
A. B. Melville and D. W. March (J. H. Williamson, of counsel), for appellant. Crawford & De Land, for respondent.
On February 7, 1890, Johnson & Sutherland, two real-estate agents of Pierre, signed and delivered to one Howard, as agent of the defendant and appellant, a memorandum agreement which is as follows: To this agreement was annexed a list of 26 lots in Wells' Second addition to the city of Pierre, giving the number of the lots and blocks, and prices of each. Within the 10 days specified in the memorandum, Johnson & Sutherland delivered to the appellant an abstract of title to the lots, which was retained by appellant without making any objection to the title. On February 15th the appellant signed and deposited as an escrow with Mr. McClure, a banker at Pierre, a check for $900, as follows: In April a deed was in due form executed for the lots by respondent and his wife to appellant, and deposited in escrow with said McClure. This deed was not executed within the 10 days specified, but there was evidence that the time was waived. Johnson & Sutherland had no written authority from respondent to sign the contract, but the execution of the deed was claimed to be a ratification of their acts. The appellant admitted, when examined as a witness, that he received the memorandum of agreement from Howard on the day it was executed, and retained it; and it clearly appeared from the evidence in the case that on that day, or very soon thereafter, appellant placed said lots with a firm of realestate agents in Pierre for sale, and that they had the same for sale for several weeks. On the arrival of the deed, in April, the appellant entered into negotiations with Johnson & Sutherland to allow him to pay cash, instead of giving a mortgage and notes, which resulted in an agreement to accept $1,950 cash in lieu of the notes and mortgage. On April 16th, Sutherland wrote to appellant a letter, of which the following is a copy: To this letter the appellant, on April 23d, wrote a reply, of which the following is a copy: On May 12th Johnson sent to appellant the following telegram: On May 13th the appellant telegraphed the following reply: No letter followed, and in June, 1890, this action was instituted.
Numerous errors are assigned in the record, but we shall only consider those discussed by counsel in their brief. These are that plaintiff failed to establish on the trial--"First, that at the time at which the alleged contract was made, and at the time suit was brought, he was the owner in fee of the property described; second, that Johnson and Sutherland were the agents of the plaintiff for the sale of the property in question, and that such agency was evidenced in writing; third, that there was a valid contract, such as is required by the statute of frauds; fourth, that such contract was mutual, and capable of being enforced or conformed to, that the defendant waived the limitation as to the time of acceptance of his offer, and that such waiver was communicated to the plaintiff, and that the delay in the production of the title deeds was on account of the defendant; fifth, that there was such a part performance as to take the case out of the statute; sixth, that the agreement was so far executed that the refusal of full execution would operate as a fraud upon the party, and place him in a situation which does not lie in compensation."
Before proceeding to examine these, we will briefly notice the objection taken to the admission of any evidence under the complaint, on the ground that the same did not state facts sufficient to constitute a cause of action. We think the complaint is sufficient without the exhibit; but, if there was any defect, it was merely as to the form of the complaint, and it could have been amended on the trial, and can now be ordered amended in the court below, if it should be deemed necessary. This question was so fully discussed by this court in Jenkinson v. Vermillion (S. D.) 52 N.W. 1066, and in Johnson...
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