Wynn v. Hoffman, 6 Div. 822

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, J.
Citation203 Ala. 72,82 So. 32
Docket Number6 Div. 822
Decision Date15 May 1919
PartiesWYNN v. HOFFMAN et al.

82 So. 32

203 Ala. 72

WYNN
v.
HOFFMAN et al.

6 Div. 822

Supreme Court of Alabama

May 15, 1919


Appeal from Circuit Court, Jefferson County; Hugh A. Locke, Judge.

Suit by Martha C. Wynn against Walter Hoffman and others, which, on death of complainant, was revived in the name of her administrator ad litem and heirs at law. From decree dismissing the cause, complainants appeal. Reversed and remanded.

Harsh, Harsh & Harsh, of Birmingham, for appellants.

Z.T. Rudulph, of Birmingham, for appellee.

THOMAS, J.

The bill was for cancellation, or that a lien be declared on lands for the purchase thereof. The complainant, owner of a one-twentieth undivided interest in 72 acres of land (known as the McIntosh tract), desired to sell the same on terms, and to that end gave the Underwriters' Real Estate & Rental Company authority in writing, of date April 1, 1905, to sell the same at "$300 per acre, one-third cash, and the balance in two notes, secured by mortgage on said interest, and payable, with interest, at one and two years, respectively," and agreed therein to pay said company "5 per cent. of amount sold for, out of said cash payment, for securing said purchaser."

It is averred in the bill that, through her said agent, having sold said property to Walter Hoffman and M.R. McNeill for $1,080, one-third cash and the balance "in equal payments in one and two years, to be evidenced by two promissory notes, to be of even date with said deed, and to bear 6 per cent. interest from date," said agent delivered the deed to said Hoffman and McNeill without procuring a mortgage for the amount of the purchase money. It is charged that "the procurement of the delivery of said deed without a delivery to her of said notes or other evidence of said debt and of said purchase money, or one-third thereof, as provided for in said deed, was a fraud upon her," and that complainant never received said notes, or other evidence of said indebtedness, or other part of said purchase money, and is informed, and therefore charges, "that [82 So. 33] her said agent never received said notes or other evidence of said indebtedness, or other part of said purchase money," or that, if said party acting as her agent as aforesaid did receive the proceeds of the sale, he had "no authority so to do, except as to one-third of said purchase price, and if said agent did receive any part of said purchase price, all or the major part thereof was immediately repaid *** to or retained by said Hoffman and McNeill, one or both, without authority from" her "and in fraud of her rights." The bill further charges that one R.T. Humphrey and the American Trust & Savings Bank claimed some interest in the land as grantees of Hoffman and McNeill, etc., and all of aforementioned persons are made respondents to the bill.

Respondent Hoffman, answering, said the property was sold to him and M.R. McNeill for $1,080; that, as originally agreed, the terms were one-third cash and the balance in one and two years from date, deferred payments to bear 6 per cent. interest; that "complainant was represented in said transaction by one Joseph T. Wilson, who had full authority to make the sale"; that, when the deed was delivered to the purchasers, "they suggested to said Wilson that it would be more satisfactory for them to pay cash for the land, as they had the money in the bank, and they therefore requested him, as the agent of complainant, and he agreed, to have another deed executed by complainant, which should express a cash consideration of $1,080 and thereby eliminate the vendor's lien. The purchasers paid cash instead of executing notes, and the said Wilson, as agent of the complainant, agreed to this, and agreed that the purchase price should be paid in cash. Thereupon Walter Hoffman and M.R. McNeill paid the full purchase price of $1,080 by check on the American Trust & Savings Bank, payable to the said Wilson, and said Wilson delivered said deed to Hoffman and McNeill, and agreed to get another deed which should express the cash consideration aforesaid. No other deed was brought to Hoffman and McNeill by the said Wilson, or by any one else, on behalf of the complainant. They therefore held and had recorded the said deed, of which Exhibit A purports to be a copy. In the meantime the said check which they had given to Wilson, who then and there was acting as agent for the complainant, had been indorsed by the said agent, and the money was paid to him for the complainant. This defendant says that, while it is true that no notes were given by Hoffman and McNeill, and no mortgage was given, or any evidence of said debt, Hoffman and McNeill had paid for the land as above mentioned." Respondent further denies that procurement of the delivery of the "deed without delivery to complainant of notes or evidence of debt as provided for in said deed was a fraud upon her."

Respondent McNeill, in his answer, averring in substance the foregoing, said further that the payment of the purchase money for said land was made in cash "upon the urgent solicitation of complainant's agent, and there was no fraud on the part of defendant against complainant in said transaction, and, as above stated, said J.T. Wilson a long time thereafter assured defendant that the transaction was satisfactory to complainant, and took a conveyance acknowledging the full receipt of said purchase money, to be executed by said complainant, and thereafter assured defendant that complainant had executed said statement, acknowledging the receipt of said purchase money in full, but for various reasons said J.T. Wilson had failed or neglected to deliver said paper to defendant, and defendant charges that complainant's said agent, J.T. Wilson, received the full...

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8 practice notes
  • St. Paul Mercury & Indemnity Co. v. Ritchie, 34280
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...v. Faulk, 118 Miss. 894, 80 So. 340; Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Wynn v. Hoffman (Ala.), 82 So. 32; N.Y.Life Ins. Co. v. McCreary (8 C. C. A.), 60 F.2d 355; 2 C. J. S. 1188, sec. 92. A person dealing with an agent must know the extent of hi......
  • Winsett v. Winsett, 8 Div. 164
    • United States
    • Supreme Court of Alabama
    • June 12, 1919
    ...was made a party, nor was an administrator ad litem appointed by the court as provided by statute. Code 1907, § 2818; Wynn v. Hoffman, 82 So. 32; Malone v. Hill, 68 Ala. 225. This should have been done in the absence of proof corresponding with the allegations of the bill to the effect that......
  • Sovereign Camp, W.O.W. v. Reed, 7 Div. 240.
    • United States
    • Alabama Supreme Court
    • November 16, 1922
    ...384; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309; Alabama Power Co. v. Hamilton, 201 Ala. 62, 66, 77 So. 356; Wynn v. Hoffman, 203 Ala. 72, 73, 82 So. 32. There was no prejudicial error in ruling on pleadings as shown by the judgment entry. We cannot consider the ruling as on dem......
  • Walker v. Peake, (No. 12772.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 4, 1929
    ...was authorized to do, is binding on his principal, and that only which he was not authorized to do, is void." In Wynn v. Hoffman, 203 Ala. 72, 82 So. 32, 34, the court said: "It is a general rule of agency that, if authority is only given to do a specific act, the limit of which i......
  • Request a trial to view additional results
8 cases
  • St. Paul Mercury & Indemnity Co. v. Ritchie, 34280
    • United States
    • Mississippi Supreme Court
    • November 25, 1940
    ...v. Faulk, 118 Miss. 894, 80 So. 340; Cape County Savings Bank v. Gwin Lewis Grocery Co., 123 Miss. 443, 86 So. 275; Wynn v. Hoffman (Ala.), 82 So. 32; N.Y.Life Ins. Co. v. McCreary (8 C. C. A.), 60 F.2d 355; 2 C. J. S. 1188, sec. 92. A person dealing with an agent must know the extent of hi......
  • Winsett v. Winsett, 8 Div. 164
    • United States
    • Supreme Court of Alabama
    • June 12, 1919
    ...was made a party, nor was an administrator ad litem appointed by the court as provided by statute. Code 1907, § 2818; Wynn v. Hoffman, 82 So. 32; Malone v. Hill, 68 Ala. 225. This should have been done in the absence of proof corresponding with the allegations of the bill to the effect that......
  • Sovereign Camp, W.O.W. v. Reed, 7 Div. 240.
    • United States
    • Alabama Supreme Court
    • November 16, 1922
    ...384; Robinson Lumber Co. v. Sager, 199 Ala. 675, 75 So. 309; Alabama Power Co. v. Hamilton, 201 Ala. 62, 66, 77 So. 356; Wynn v. Hoffman, 203 Ala. 72, 73, 82 So. 32. There was no prejudicial error in ruling on pleadings as shown by the judgment entry. We cannot consider the ruling as on dem......
  • Walker v. Peake, (No. 12772.)
    • United States
    • United States State Supreme Court of South Carolina
    • December 4, 1929
    ...was authorized to do, is binding on his principal, and that only which he was not authorized to do, is void." In Wynn v. Hoffman, 203 Ala. 72, 82 So. 32, 34, the court said: "It is a general rule of agency that, if authority is only given to do a specific act, the limit of which i......
  • Request a trial to view additional results

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