Tynan v. Dullnig

• Decision Date: 14 February 1894
• Citation: 25 S.W. 465
• Parties: TYNAN v. DULLNIG.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

25 S.W. 465

TYNAN v. DULLNIG.¹

Court of Civil Appeals of Texas.

February 14, 1894.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Action by George Dullnig against E. K. Tynan on a contract for the sale of land. From a judgment for plaintiff, defendant appeals. Reversed.

Peter Shields and Simpson & James, for appellant. C. A. Keller, Leo Tarlton, and Shook & Vander Hoeven, for appellee.

FLY, J.

The basis of this suit is a contract for the sale of land. The contract is as follows: "San Antonio, Texas, Oct. 28th, 1889. Know all men by these presents that I have this day sold the Edward K. Tynan property, on West Commerce street, to wit, 2 houses, No. 1 and 3, now occupied by Martin & Schryver and Mrs. Hill, to George Dulling, for the sum of fifteen thousand doll. ($15,000.) A check of five hundred doll. ($500) is paid to us as part of the purchase money to the same; this check being deposited with the understanding that, in case of any defect in the title of said property, the trade is null and void, and check will be returned to purchaser. [Signed] John T. Hambleton & Co., Land Agents, per H. L. Dignowity, Agent." Appellee brought the suit, alleging that John T. Hambleton & Co. were the lawful agents of appellant, and entered into the contract for him. There was an allegation of the breach upon the part of appellant, and a prayer for damages. Appellant answered by general and special demurrers, and by plea of non est factum, and denial of the authority of Hambleton & Co. to bind him, and that the memorandum of sale was their act, or that of one H. L. Dignowity, who had no authority in the premises; that neither Dignowity nor Hambleton & Co., had any authority to accept for him appellee's check, as alleged in the petition, and, if it was received, it was without the knowledge or consent of appellant; that, if Hambleton & Co. ever had authority to sell the land, it had ceased and been abrogated before said memorandum was made. The trial was before a jury, and resulted in a verdict and judgment for appellee in the sum of $3,429.

The testimony is conflicting, but it may be gathered that, in the summer of 1889, appellant verbally constituted Hambleton & Co. his agents to sell the land concerning which the damages are claimed, for the fixed sum of $15,000 cash. Appellant swears that this agency had been abrogated and rescinded by him before the date of the memorandum on which the suit is founded. This was denied by Hambleton. Under our conception of the law of this case, it matters not which of these statements was correct. In October, 1889, some days before the date of the memorandum, Hambleton, who seems to have been doing business with one Johnson under the firm name of Hambleton & Co., was called away from San Antonio, and in his absence left his land-brokerage business in the hands of his brother-in-law, H. L. Dignowity; and, during this absence, Dignowity made the trade with appellee, and signed the memorandum, as shown in the copy hereinbefore written. Appellant promptly repudiated Dignowity's authority to bind him, and refused to make the deed. There was no offer on the part of appellee to pay the balance of the purchase money either to Hambleton, Dignowity, or appellant. We will consider the points raised by the assignments, that are necessary, from our standpoint, for a proper disposition of the case:

It is insisted by appellant that the memorandum of sale is not sufficient, under the statute of frauds, because the name of the person to be bound thereby it not stated therein. This position is not sound and well taken. It is not necessary, in order to bind the principal, that the memorandum should be executed in his name, and the requirement of the statute of frauds is satisfied if the memorandum is signed by the agent. The name of the principal may be disclosed by parol testimony. Heffron v. Pollard, 73 Tex. 98, 11 S. W. 165; Tied. Sales, §§ 73, 80; Mechem, Ag. § 695; 1 Reed, St. Frauds, § 372, p. 605. The statute of frauds provides: "No action shall be brought in any of the courts in any of the following cases unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith or by some person by him thereunto lawfully authorized." Admitting that Hambleton & Co. were the agents of appellant, acting under verbal authority to sell the land, did their agency to sell empower them to appoint a subagent, without the knowledge or consent of the principal, who could bind the principal in regard to...