83 Ark. 403 | Ark. | 1907
(after stating the facts.) Appellants stress two propositions for reversal:
1. That fraudulent representations of Mann as to the timber on the land will defeat specific performance.
2. The .statute of frauds.
1. We do not find any fraudulent representations made by Mann that would warrant a court of equity in refusing him the specific -performance of his contract for the sale of the land in controversy. It is not specifically alleged that Mann made fraudulent representations to W. Burres Head in person. The charge is that said negotiations for said purchase between Mann and this defendant were through Pledger, his agent; that, if said negotiations amounted to an agreement to sell, the same, was void because induced by the false, fraudulent and willful misrepresentations of Mann as to the timber upon said lands. The testimony of W. Burres Head to the effect that on February 21, 1902, Mann told him that there was no timber on the land, and that he, Mann, wanted to pasture and cultivate the land, was not responsive to any ^allegation of fraudulent representation made in the pleading. Moreover, if such testimony were responsive and should be considered, the further testimony of Head' shows that these representations did not move him to make the contract of sale. For he says: “I refused to make him a price then. * * * I was suspicious that there was timber on the land. I wrote to Pledger in March to look at the 'Chandler Place. I told him Mann had offered me $300, and that if there was no timber on the land the price was reasonable.” This testimony shows that Head did not rely upon Mann’s statement, even if he made it, concerning the timber, but, on the contrary, that Head wpuld not price the land or enter upon the negotiations until his special agent, Pledger, had “looked at the place.” The contract of sale was therefore not affected by these representations. Winter v. Bandel, 30 Ark. 373; Matlock v. Reppy, 47 Ark. 48; Neely v. Rembert, 71 Ark. 91.
Pledger testified that Mann represented to him “that the oak timber in the bottom on the land had been cut; that there was none to amount to anything.” It is contended that this representation by Mann was false, and should defeat his action for specific performance. This representation was shown not to be false. Mann swears that all the choice oak timber had been cut at the time he bought, that the red oak had no market value at that time, and that the oak that was in the bottom at the time he made the statement was principally red oak. Mann is corroborated in his statement that the white oak timber had been out by witness Henry, who says that the Hamlin Stave Company had bought and cut the stave timber on the land prior to 1903. He is also corroborated by witness Sbankle, who says that Mann asked Pledger, while they were on the land, if he wanted to go into the bottom to see “how much gum there was that would make staves; that there was no oak timber, as that had been cut.” This testimony tends to show that Mann, when he made the statement that all the timber in the bottom had been cut had reference to the timber that would make staves, the white oak timber that was the only oak timber of value. This representation of Mann is not shown to be false and made with the intention of deceiving Pledger and inducing the contract of sale. Pledger had no right to claim that he was deceived by it. Pie was specifically directed to look at the land for the purpose of ascertaining its- timber value, and had gone upon and inspected it for that purpose. No one was restraining him from further investigation. The way was open to him, as much so as to the purchaser. Pie was representing the absent owner, and his duty was to find out about the timber. He was dealing with the purchaser “at arm’s length.” When the means of information are at hand and equally open to both parties, and no concealment is made or attempted, the language of the cases is “that the misrepresentation furnishes no ground for a court of equity to refuse to enforce the conti'act of the parties.” Slaughter v. Gerson, 13 Wallace, 379; 1 vol. Crawford’s Digest, 424, f.
2. The uncontradicted proof shows that there was a" verbal sale of the lands in controversy. Head swears that he wrote to Pledger to look at the “Chandler Place;” that Mann had offered three hundred, and that the price was reasonable, “if there was no timber on the place.” Again he says: “Pledger wrote me about the trade with Mann.” Again: “When I went to make the deed to Mann,” * * *. . This testimony by one of the vendors, and the agent for the others clothed with power of attorney, shows that the “trade was -made.” Head’s letter in reply to letter of Pledger, his special agent to carry on the negotiations, shows that he had been informed fully of the terms and conditions of the sale, and understood them and ratified them, for he wrote, “I think you sold the Chandler place for all it is worth. Close up the trade as soon as you can, and I will make the deed.” Here was written authority to the special agent “to close up the trade” as soon as he could, which the special agent proceeded to do, as the proof shows, by 'directing the payment of the purchase money in check on the Lumber Company to be deposited with a certain party to await the arrival and delivery of the deed, and by authorizing the vendee in the meantime to take possession, telling him “to go ahead,” that he did not care what “he (the vendee) did with the place.”. The vendee, as the proof shows, fulfilled the requirements of the vendor as to the payment of the purchase money by depositing the check as requested, and proceeded to take possession in pursuance of the contract of sale, and in consummation of same, acting upon the authority given by the vendors. Mann took possession by renting the land to Brown, and by selling and otherwise utilizing the timber. The facts proved as to the payment of the purchase money and the taking of possession meet every requirement of our decisions as to the part performance of the parol contract necessary to give the vendee, Mann, the right to specific performance and to put his case out of the operation of the statute of frauds. Keatts v. Rector, 1 Ark. 391; McNeill v. Jones, 21 Ark. 277; Kellums v. Richardson, 21 Ark. 137; Pindall v. Trevor, 30 Ark. 249; Terry v. Rosell, 32 Ark. 478; Sutton v. Myrick, 39 Ark. 424; Moore v. Gordon, 44 Ark. 334.
The owners of the land in controversy were residents of Texas at the time the power of attorney was executed authorizing W. Burres Head to sell same. The land being situated in Arkansas and He.ad, the agent authorized to sell same, being in Texas, it may be fairly presumed that the owners in executing the power of attorney contemplated that W. B. Head would employ a subagent to find a purchaser, and to perform the other merely incidental and nfinisterial acts necessary to consummate the sale of the land if made to a purchaser in this State. Pledger was but the instrument through whom W. Burres Head acted, and the acts of Pledger were only the acts of Head. Pledger did not make the sale, but only carried out the instructions of Head, who did make it. Pledger was not vested with any authority or discretion of his own, but only acted as the exponent of Head to do the things which, on account of the exigencies of the situation, Head could not do in person. Penwick v. Bancroft, 56 Iowa, 527; Mechem on Agency, § 1934 and cases cited in note; 1 Am. & Eng. Ene. Eaw, 980, and cases cited in note; Tiffany on Agency, 119. But if the acts of Pledget' were unauthorized, Plead, after being informed of them, fully ratified what had been done, as his letter to Pledger proves. The facts in the case of Bromley v. Aday, 70 Ark. 351, relied upon by appellants, are entirely different from the facts of this record, and this differentiation makes the doctrine of that case inapplicable here. The decree is affirmed.
