White v. Lee

• Decision Date: 02 May 1910
• Docket Number: 14551
• Citation: 97 Miss. 493,52 So. 206
• Court: Mississippi Supreme Court
• Parties: JASPER M. WHITE v. JEHU H. LEE

52 So. 206

97 Miss. 493

JASPER M. WHITE v. JEHU H. LEE

No. 14551

Supreme Court of Mississippi

May 2, 1910

FROM the circuit of Lauderdale county, HON. JOHN L. BUCKLEY Judge.

White appellant, and another, were defendants in the court below Lee, appellee, was plaintiff there. From a judgment in plaintiff's favor defendant White appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Bordeaux & Venable, for appellant.

An agent authorized to sell real estate, that is, to enter into a contract of sale, has no authority to collect the purchase money. 1 Am. & Eng. Ency. of Law (2nd ed.) 1008, 1009, and numerous cases therein cited and the copious footnotes and criticism of seemingly conflicting decisions; 31 Cyc. 1368, and many citations on this precise point at the bottom of footnote 21. We especially refer the court to the case of Mann v. Robinson, 42 Am. Rep. 771. Every text book on agency that we have consulted lays down this same rule. The rule is just and the reason for it obvious. A real estate agent may have ever so much ability in the matter of procuring purchasers and closing contracts of sale and the owner of land may be desirous of procuring his services for this purpose and yet be wholly unwilling to trust him with the purchase money or any part thereof. The operation of this rule facilitates trading, imposes no hardships on the vendee and throws a just and reasonable safeguard around the vendor.

The plaintiff's seventh instruction eliminated from consideration the questions of (1) Express precedent authority; (2) Subsequent express ratification; (3) Subsequent ratification by silence.

The first clause of this instruction is erroneous and is calculated to mislead the jury in that it attempts to create authority to collect the purchase money by implication, which does violence to the proposition of law established, supra; and further it assumes that the collection of the purchase money is usual and customary when there is absolutely no evidence to support such an assumption.

We come now to the consideration of the body of the instruction, which embodies the plaintiff's idea, approved by the trial court, of what will, in law, take the place of authority from White, and we find that White must be deemed to have authorized the collection of the purchase money, if the jury believe the following: (1) That White told Sheely to bind the trade; (2) That Sheely acted in good faith; (3) That the collection of the money was a reasonable precaution.

Baskin & Wilbourn, for appellee.

Under Sheely's testimony White not only authorized the collection of the two hundred dollars but after knowledge of it acquiesced in it, and ratified it, and did not promptly repudiate it to Lee. Again Sheely was impliedly authorized to collect the money whether expressly authorized or not.

An agent authorized to act for his principal by oral appointment in the sale of land is impliedly authorized to collect so much of the purchase price of the lands as is to be paid in cash as an incident to the sale. See the following authorities: Alexander v. Jones (Iowa), 19 N.W. 913; Story on Agency, section 58; Johnson v. Magruder, 15 Mo. 365; Zerby v. Grisgsby, 9 Leigh. (Va.) 387; Higgins v. Moore, 6 Bosw. 344; Goodale v. Wheeler, 11 N.H. 424; Hoskins v. Johnson, 5 Sneed. 469.

Argued orally by R. M. Bordeaux, for appellant.

OPINION

MAYES, C. J.

Lee brought this suit against White and Sheely for the purpose of recovering the sum of $ 200. While the suit is nominally against both, it is really a suit against White. The substantial facts are as follows:

White owned a life interest in a certain tract of land located in Alabama, near which place Lee lived. It is claimed by Lee that White authorized Sheely to act for him as his agent in negotiating a sale of his interest in this property, and it is claimed by Lee that Sheely did act as agent, and contracted to sell the property to him for a certain price and on certain terms, agreed upon and consented to and ratified by White. The testimony shows that at or about the time Sheely negotiated the trade with Lee claiming to act as agent for White, he collected from Lee the...