72 W. Va. 195 | W. Va. | 1913
In and prior to 1904 McGraw, McClintic, the defendant, and ■others whose names do not appear, were owners of contiguous lands in Pocahontas county, aggregating approximately 15,000 acres. The plaintiffs were agents of McGraw and McClintic, authorized to sell their lands. Thomas J. Shryock and Geo. F. M. Hauck were directors, the latter being president, of the defendant. On May 17, 1906, Shryock wired Alexander that he would recommend that the defendant sell its land at the rate ■of ten dollars per acre net, one third cash, balance in one, two •and three years, with interest, secured by mortgage on the land, reserving mineral rights, but saying nothing about commissions or time limit. Two months later, Alexander sold the entire boundary to Miller & Miller at fifteen dollars per acre cash,
Alexander testifies that immediately thereafter he and his co-plaintiff continued their efforts to obtain a purchaser, and again sold to the Wilsons at eleven dollars per acre. But at a meeting in Baltimore in October, 1907, all the owners being present, together with Shryock and Iiauck representing defendant, the latter declined to confirm the sale, assigning as a reason therefor that the directors by resolution had withdrawn defendant’s lands from the market. From the date of Millers’ failure to complete their purchase to defendant’s refusal to convey to the Wilsons, there had been no communication between plaintiffs and Shryock and Iiauck in relation to any sale of the lands by the former. Nor from the latter date until in March, 1909, was there any such communication between them, except an interview between Williams and Shryock relating to some maps of the lands. But in March or early in April, 1909, all the owners being again present in Baltimore, defendant and other Owners did in fact convey the entire boundary for eleven dollars-per acre to the Chaffey-Wilson Lumber Company, for whom the' Wilsons were formerly negotiating with plaintiffs for the lands. About six months thereafter plaintiffs, claiming as selling agents for defendant, instituted this action — assumpsil—to recover from defendant $5524.40, that sum being at the rate of one-dollar per acre for the lands owned by it. Upon the conclusion of plaintiffs’ evidence upon the trial of the case, the court, upon' defendant’s motion, excluded it and directed a verdict for defendant, and refusing to set aside the. verdict and judgment, and to grant a new trial, plaintiffs obtained this writ of error.
The evidence proves, first, a sale by plaintiffs to the Millers; second, a sale by them to the Wilsons. But it fails to show the agency through which sale was finally made to the latter. Touching the negotiations leading thereto, .the only information imparted is that upon inquiry by defendant’s agent Shryoek or Hauck the Wilson’s replied that they were no longer interested as purchasers of the property. Williams says he talked to the Wilsons once, perhaps twice, between October, 1907, and March, 1909; but on what account he does not say. Nor must it be necessarily assumed or inferred that his conversations related to a sale of defendant’s lands. He then knew that the. lands had previously been withdrawn from the market, at least that defendant’s officers had so advised Alexander on the former date. They being so withdrawn, he was without authority to negotiate a sale'thereof. Besides, the assumption is more reasonable that both he and his associate Alexander were then engaged, if in fact engaged at all, in an effort to sell as agents jf MeGfraw and McClintic and for themselves as owners of integral parts of the boundary exclusive of defendant’s lands.- Where there is no proof' of fraudulent or unfair revocation of authority, either under an option or a contract of agency, the revocation is
That plaintiff Alexander treated the telegram as an option is apparent from his own testimony. He sold to the Millers, and sought to secure the title in his name or under his control, that he might convey direct to the purchaser at an immense profit, and continued dealing therewith upon the assumption that he was still vested with the title, complaining when he ascertained that the deed executed by defendant to him as trustee had been withdrawn from escrow. He says: “When we made the sale ■to Miller I had a direct contract — ten dollars per acre — from the St. Lawrence (Sherwood) people, and any profit over the ten dollars I could have had/” He also says that the conveyance to him was that he might deal with the ¡Millers direct as to all the lands, the boundary in its entirety; that the reason the deed was made to him was that he had a price of fifteen dollars per acre from the Millers and ten from defendant, and that he and his partner were entitled to the difference; also that if defendant did not object he could go at any time and take the land at the price fixed, by it. He told Huntley he had a deed for the land, thus indicating an intent to deal with the land either as an actual purchaser from defendant vested with the title, or as having right to demand title, thus negativing agency to sell.
But, treating his authority as an agency to sell at a profit to him measured by the excess above ten dollars per acre; the authorities require promptness, activity and expedition in effectuating its purpose. Where a limit in time is fixed by agreement of the parties, such time is deemed reasonable; and, unless the contract is optional or unilateral, it can not be revoked within the time fixed without liability. Under these conditions, it will be treated as exclusive, unless the contract otherwise provides. But where no time is fixed, the authority continues for a reasonable time only. Lunney v. Healey, 44 L. R. A. 608; Tinsley v. Durfey, 99 Ill. App. 239; Saller v. McMurry, 113 Mo. App. 253; Oliver v. Katz, 131 Wis. 409; Stackler v. Kramer, 118 Mo. App. 329; Turner v. Snyder, 111 S. W. 858,
In Sibbald v. Iron Co., supra, Justice Finch says: “Where no time for the continuance of the contract is fixed by its terms, either party is at liberty to terminate it at will, subject only to the ordinary requirement of good faith. Usually the broker is entitled to a fair and reasonable opportunity to perform his obligation, subject, of course, to the right of the seller to sell independently. But that having been granted him, the right of the principal to terminate his authority is absolute and unrestricted, except only that he may not do it in bad faith, and as a mere device to escape the payment of the broker’s commissions. Thus, if in the midst of negotiations instituted by the broker, and which were plainly and evidently approaching success, the seller should revoke the authority of the broker, with the view of concluding the bargain without his aid, and avoiding the payment of commissions about to be earned, it might well be said that the due performance of his obligation by the broker was purposely prevented by the principal. But if the latter acts in good faith, not seeking to escape the payment
There is no proof or intimation of fraud or mala fides in the defendant’s refusal to accept the Wilsons as purchasers in 1907; nor do plaintiffs base their right to recovery on such default. On the contrary, they do not complain thereof. If in fact they subsequently continued negotiations with the Wilsons — a fact not proven, directly or impliedly, as we have seen — with the view of selling defendant’s land to them, they thereby construed •such refusal as made in good faith and not arbitrarily.
When it is recalled that Alexander received the Shryock telegram in May, 1906, that they made an ineffectual sale soon thereafter, that they took from that time until October, 1907, to find the Wilsons, to whom without complaint from plaintiff, defendant refused to convey for reasons assigned by them, but to whom it did convey in 1909, nearly a" year and a half later, it can not with propriety be said that plaintiffs, under all the circumstances, acted under the agency within a reasonable time.
We are of opinion therefore to affirm the judgment.
Affirmed.