Vermont Marble Co. v. Mead

• Decision Date: 31 July 1911
• Citation: 85 Vt. 20,80 A. 852
• Parties: VERMONT MARBLE CO. v. MEAD et al.
• Court: Vermont Supreme Court

80 A. 852

85 Vt. 20

VERMONT MARBLE CO.

v. MEAD et al.

Supreme Court of Vermont. Rutland.

July 31, 1911.

[Copyrighted material omitted.]

Appeal in Chancery, Rutland County; Alfred A. Hall, Chancellor.

Suit by the Vermont Marble Company against Carlos E. Mead and another. From a decree against the defendant named, he appeals. Affirmed as modified, and cause remanded.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

F. D. White and Charles L. Howe, for appellant Eastman.

Frank C. Partridge and T. W. Maloney, for appellee.

WATSON, J. The bill is for specific performance of a contract for the sale to the orator of a certain piece of quarry land and an undivided one-tenth of another piece of quarry land adjoining, both located in the town of West Rutland, this state. Before and at the time of making the contract in question the property covered by it was owned equally by Carlos E. Mead, a resident of Chicago, Ill., and his brother, John H. Mead, and their sister, Charity R. Burr, as tenants in common. John and Charity resided in West Rutland, near to each other and to the common property. The contract was dated June 1, 1905, and was for the sale of their united interests. It was signed by John and Charity for themselves, by Carlos through John as agent, and by the orator. Carlos refused to sign a deed of conveyance to the orator in performance of the contract. After said contract was entered into, he sold and conveyed his undivided interest in all said property to the defendant George P. Eastman. No question is made but that the contract is sufficient in substance to answer the requirements of the statute of frauds. It is contended, however, that Carlos never gave John power to make and sign a binding contract for the sale of his interest in the property, and therefore he was not bound by this contract. Our statute of frauds provides that no action at law or in equity shall be brought upon a contract for the sale of real estate or an Interest therein, unless the contract or agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized in writing. P. S. 1576.

The master finds that Carlos, John, and Charity were all desirous of selling their common interests in both these pieces of land, and to that end John and Charity entered into negotiations with the orator; that after some preliminaries, and on June 1, 1905, the contract in question was concluded to sell to the orator the entire interests of the three cotenants in said premises for the sum of $6,300, $200 of which was then paid in cash, and the balance of $6,100 was to be paid after the orator had examined the title and when the deed was passed; that previous to June 1st considerable correspondence passed between John and his sister on the one part and Carlos on the other with reference to the sale of these lands, but that all the authority which John had for signing this contract for his brother was given in letters from the latter of May 25, and of May 29, 1905. To determine the scope of the authority thus conferred, we must, as far as possible on the facts and circumstances shown by the record, put ourselves in the place of the writer, reading the letters as it were with his eyes.

It appears that some time before the 25th of May, 1905, John and Charity were offered $6,000 for the property by the orator, and that Charity wrote Carlos a letter concerning it, in reply to which Carlos sent them the letter of May 25th, saying: "I should say accept at once. We might do better if we worked the Columbian and Vermont Marble Co. against each other, asking each to give best bid at once. But we might lose. Father used to say it is a good time to sell when we get a good price. I know there is over $6,000.00 worth of marble in that one-tenth, but we cannot get it out So it is my judgment to sell it." On receipt of this letter, John wrote Carlos as follows: "Your reply to Chick's [Charity's] letter just received. But you do not make it plain in your letter what we want to know. The Vermont Marble Company has offered us $6,000.00 for the one-tenth interest in the Fant marble property and the Manley quarry, inclusive, and I am working hard to get the bid raised by Eastman who is opening the quarry you were interested in. We have not had a chance to realize anything on it before, and now have a spot cash offer, and I feel that now is the time to sell because the marble business is on a boom and as it's higher and it's time to sell when we have a chance. * * * And I think Chick would like to sell as well as myself, and I want your permission to sell to the highest bidder for spot cash, by return mail, and I will get all I can." As a part of the same letter Charity wrote: "We thought by your letter that you did not understand that the 'blue quarry' or 'Manley quarry' was included with the one-tenth in the $6,000.00 offer from the Vermont Marble Co. Now George Eastman has offered $100.00 more than the Vermont Marble Co. Johnny thinks perhaps he can bring it up to $10,000 as there is a little competition. Shall we let it go to the highest bidder? I think George Eastman is anxious to get it because he is afraid the Vt. Co. will work it with their other property each side of it and hurt him." In reply Carlos wrote the letter of May 29th to John, which reads: "1905-5-29. Brother John:—Just got home and found that your letter got to the house an hour too late to catch me. I understood perfectly that the one-tenth interest in the Fant, and the ten rods north of it, was included in the deal. You have my idea exactly in working two or more firms in bidding against each other, so as to get the highest price possible. Also you have my sanction to sell as soon as you are satisfied you have the top notch in price— for $6000.00 or as much higher as you can work them up. Would it not be a good plan to see if you can get the Columbian Marble Co. started in to bid as well as the other two? I think if you can get it up to $10,000.00 you will do well. Keep cool and tell them to put in their best bid first as that is the one that will get it. If you do not sell it for spot cash, sell it for at least $6,000.00 down and mortgage notes secured on the marble property for the balance. Keep cool and you may run it higher than the $10,000.00. But as soon as you are satisfied you have the top, close the deal. Your brother, C. E. Mead, 87 Artesian Ave., Chicago, Ill."

It is very apparent that these brothers and the sister were working in harmony for the benefit of their united interests. They were all anxious to sell, and, as appears from these letters, thought the conditions of the marble business were sufficiently favorable to make the time most opportune for realizing a good price for the property. It appears in like manner that they all thought it best to accept the offer of $6,000, unless a better one should be made. In his letter of May 25th, where only that sum was particularly spoken of, Carlos wrote: "I should say accept at once." Again, in his letter of May 29th. he says: "You have my sanction to sell as soon as you are satisfied you have the top notch price, for $6,000.00 or as much higher as you can work them up. * * * But as soon as you are satisfied you have the top, close the deal." In neither of these letters does Carlos convey the idea that any offer made must be submitted to him before acceptance. To the contrary, he is quite emphatic in directing his brother, when satisfied that he has been offered the "top notch price," to close the trade. But how was John to close it, unless given the power to make a contract or agreement in writing for that purpose, signed in a way to make it obligatory upon all of the common owners, as well as upon the purchaser? If the power to sell and "close the deal" does not carry with it the power to enter into a binding contract for the sale, answering the requirements of the statute of frauds, the power granted is ineffectual to accomplish the end for which it was intended.

It is a rule of law that, where an express authority is given to do a certain thing, such authority carries with it by implication authority to do all acts which may be necessary for the purpose of effecting the object for which the express authority is given. Pole v. Leask, 28 Beav. 562; Vanada v. Hopkins, 1 J. J. Marsh. (Ky.) 285, 19 Am. Dec. 92.

We therefore hold that by said two letters John was lawfully authorized to make and sign a contract in writing for the sale of the interest of Carlos in all said property, and, if the contract in question was concluded in the proper performance of the duties of the agency, it was binding upon the principal. The case of Lyon v. Pollock, 99 U. S. 668, 25 L. Ed. 265, is much in point, and in Haydock v. Stow, 40 N. Y. 363, it is said that an agent authorized to sell either real or personal estate may enter into a contract, within the terms of his authority, which will bind his principal, and that this is the very essence of the authority to sell.

The defendant relies upon the rule, seemingly pretty generally laid down, that the mere employment of an ordinary real estate broker to effect a sale of land, even though the price and terms be prescribed, does not amount to giving present authority to such broker to conclude a binding contract for the same, and that the words "for sale" or "to sell" and the like usually mean no more than to negotiate a sale by finding a purchaser upon satisfactory terms. Yet the facts of record show the agent not to have been a mere broker. Consequently, even though the above rule be sound (a question not considered), it is not applicable here, where the principal and the agent, brothers, together with their sister, were equally interested as cotenants in the property to be sold, the principal residing in a distant state, and the agent and the...