87 Va. 559 | Va. | 1891
(after stating the case) delivered the opinion of the court.
The sole question to be determined is, were Chewning & Rose authorized, as the agents of John W. Gordon, to make the contract in question? The answer to this question depends upon the nature and extent of the authority conferred by John W. Gordon upon Ohewning & Rose, it not being denied by the former that the latter were his agents in a limited and restricted sense.
Agencies are commonly divided into two sorts—(1) a general agency; (2) special agency. A general agency properly exists where there is a delegation of authority to do all acts connected with a particular trade, business or employment. On the other hand, a special agency exists where the authority delegated is to do a single act. Thus, a person, who is authorized by his principal to execute all deeds, sign all contracts, or purchase all goods required in a particular trade, business or employment, is a general agent in that trade, business or employment. But a person, who is authorized by his principal to execute a particular deed, or to sign a particular contract, or to purchase a particular parcel of merchandise, is a special agent. Story on Agency, § 17. The same author, in § 18, says: “A person is sometimes (although, perhaps, not with entire accuracy) called a general agent, who is not appointed with powers so general as those above mentioned, but who has a general authority in regard to a particular object or thing; as, for example, to buy and sell a particular parcel of goods, or to negotiate a particular note or bill, his agency not being limited in the buying or selling such goods, or negotia
The author, in this concise statement of the law, covers all the ground essential to the proper consideration of every practical distinction that may be taken between a general and a special agency. It is of the utmost importance to carefully discriminate between general agents and special agents, as to the rights and responsibilities, the duties and the obligations, both of principals and agents, as the principles applicable to the one frequently have no application whatever to the other. To perform this task successfully, and with due regard for the rights of all persons interested, it is important to keep constantly in mind what has been already stated—the distinction commonly taken between the case of a general agent and that of a special agent, the former being appointed to act in his principal’s affairs generally, and the latter to act concerning some particular object. In the former case, the principal will
The ground of this distinction, says Story, is the public policy of preventing frauds upon innocent persons, and the encouragement of confidence in dealings with agents. If a person is held out to third persons, or to the public at large, by the principal, as having a general authority to act for and to bind him in a particular business or employment, it would be the height of injustice, and lead to the grossest frauds, to allow him to set up his own secret and private instructions to the agent, limiting that authority; and thus to defeat his acts and transactions under the agency, when the party dealing with him had, and could have, no notice of such instructions. In such cases, good faith requires that the principal should be bound by the acts of the pgent, within the scope of his general authority; for he has held him out to the public as competent to do his acts, and to bind him thereby. The maxim of natural justice here applies with its full force, that he who, without intentional fraud, has enabled any person to do an act, which must be injurious to himself, or to another innocent party, shall himself suffer the injury rather than the
The same author, after stating the exemplification of the rule in the civil law, as to the distinction between a general and a special agency, says: “The illustrations in our law of the same distinction between general agents and limited or special agents, may be familiarly seen in the common case of factors known to be such. They possess a general authority to sell; and if in selling they violate their private instructions, the principal is nevertheless bound. And it makes no difference, in a case of this kind, whether the factor (if known to be such) has been ordinarily employed by the principal to sell, or whether it is the first and only instance of his being so employed by the principal to sell; for still, being a known factor, he is held out by the principal as possessing, in effect, all the ordinary general authority of a factor, in relation to the particular sale. But if a common person, not being a factor, should be authorized to make a like sale, and he should violate his private instructions, and deviate from his authority in the sale, the principal would not be bound. In such a case, no general authority is presumed, and he who deals with such an agent, deals with him at his own peril; for, in such a case, the principal has not held the agent out as a general agent.
However apt the above illustration may be in the case o‘f factors known to be such, the doctrine applicable to that class of agents can have but a limited influence, in illustrating the case of agents who, as in the present case, are real estate brokers, as a factor differs from a broker in certain important particulars. Beal estate brokers negotiate the sale or purchase of real estate. * * * Their powers'are ordinarily limited to
The same author, discussing the case of factors and commission merchants, at p. 289, says: “A factor is an agent employed to sell goods consigned or delivered to him by or for his principal for a commission, usually called a factorage or commission. Hence, he is often called a commission merchant or consignee; the goods received by him for sale are called a consignment. There seems to be no substantial difference in law between a factor and a commission merchant. The words are ordinarily used interchangeably. A factor, as we have seen, differs materially from a broker. He is intrusted with the possession, management and disposal of the consigned property. He may sell in his own name and may receive and enforce payment. And in Story on Agency, after defining the terms “ broker ” and “ factor ” in substantially the same language as that employed in 3d Wait, in §28, et seq., it is said : “ Properly speaking, a broker is a mere negotiator between the other parties, and he never acts in his own name, but in the names of those who employ him. Where he is employed to buy or sell goods, he is not intrusted with the custody or possession of them, and is not authorized to buy or to sell them in his own name. He is strictly, therefore, a middle-man, or intermediate negotiator between the parties; and for some purposes (as for the purpose of signing a contract- within the statute of frauds) he is treated as the agent of both parties.
“It has been already suggested,” says the author, “that a broker is, for some purposes, treated as the agent of both parties. But primarily he is deemed merely the agent of the party by w7hom he is originally employed; and he becomes the agent of the other party only when the bargain or contract is definitively settled, as to its terms, between the principals; for, as a middle-man, he is not intrusted to fix the terms, but merely to interpret (as it is sometimes phrased) between the principals.”
“The character of a broker is also sometimes combined in the same person with that of a factor. In such cases we should carefully distinguish between his acts in the one character and in the other; as the same rules do not always apply precisely to each. * * * * A factor differs from a broker in some important particulars. A factor may buy and sell in his own name, as well as in the name of his principal. A broker, a,s we have seen, is always bound to buy and sell in the name of his principal. A factor is intrusted with the possession, control, and disposal of the goods to be bought or sold, and has a special property in them, and a lien on them, A broker, on the contrary, usually has no such possession, management, control, or disposal of the goods, and consequently has no such special property or lien.”
Guided by these principles, we must turn to the evidence in
In the court below, the learned chancellor, Fitzhugh, dismissed the plaintiff’s bill, on the ground that there was an irreconcilable conflict in the testimony as to the extent of the authority delegated by Gordon to Ohewning & Rose as agents; and that there was such conflict, he stated, that it would be a waste of time t.o show in detail, as it was apparent on the face of the depositions.
In the light of the evidence in the cause, the conclusion arrived at by the'chancellor is, in our opinion, undoubtedly the correct one. The following facts may be stated as either undisputed, or established by such an overwhelming weight of evidence as to render any contention to the contrary absurd. The property in controversy is part of a lot of land commencing at the northwest corner of Cary and Linden streets, extending west one hundred and twenty feet, fronting on said Cary street, and extending back one hundred feet to an alley. The appellee, John W. Gordon, purchased the property, on or about the 1st of March, 1887, at an auction sale conducted by Chewing & Rose, real estate agents, and was thus bought for speculation; and having been so bought, the purchaser, Gordon, said to Chewning & Rose, “ it is for sale again,” and expressed a desire that they would sell it; but no definite price was then fixed upon the property. Chewning. & Rose had before this sold other properties for Gordon, and they had in each case, before closing the contract, submitted
Not very long after the purchase of this property by Gordon, the opposite or southeastern corner of Cary and Linden streets was mentioned in the city newspapers as a desirable site for the erection of the proposed Clay Ward market-house, and a discussion of the subject in the papers about that time had the effect of bringing this property into favorable notice, and the subsequent action of the city council (presently to be more particularly referred to) greatly stimulated the demand therefor. The proposed erection of the Clay Ward market met with considerable opposition, and for some months the discussion of the subject seemed to cease, and the result was a lull in the demand for property in the immediate neighborhood of the proposed site for the new market-house. During this period, in the summer of 1888, at the instance and by the persuasion of Chewning & Rose, Gordon was induced to let them try this property at public auction; consequently the property was advertised to be sold in lots of twenty feet each, fronting on Cary street. A few days prior to the day appointed for the auction sale, Gordon had a conference with Chewning & Rose in order that they might be informed as to the mini mum prices at which the lots would be allowed to go at auction, and on this, as on other occasions, they advised Gordon either to sell the property as a whole or to first put up
Very few people attended the proposed auction, and Mr. Rose, who was the auctioneer of the firm of Ohewning & Rose, declined to offer the property at auction, saying -he would not put up the property; that he knew the crowd, and that every would-be buyer wanted the corner lot, which they were determined not to sell first.
From the day of the proposed auction sale until the 12th day of January, 1889, the date of the alleged contract of sale by Chewning & Rose, agents for Gordon, a period of some seven months, the latter agreed with the former upon no price for the lots in question; but during that period he several times conferred with them abbut the real estate market, and asked if they had any offer to submit for these lots.
Thus the matter stood until the 7th day of March, 1889, on which day John W. Gordon left Richmond for North Carolina; and on the same day, but after Gordon left the city, there was a meeting of the common council of the city of Richmond, at which a resolution was unanimously adopted fixing the location of the Clay Ward market at a point very near the property in question. While in North Carolina, Gordon received telegrams making him offers for this property, which induced him to believe that his property had suddenly become greatly in demand. He was at a point remote from any railroad, but
The facts above stated are either undisputed or are not seriously controverted. There are, however, other facts and circumstances, some of which are relied upon by the appellant to show that Chewning & Eose were the general agents of Colonel Gordon, and fully authorized to make the sale in question and bind him thereby; and other facts and circumstances relied on by the appellee, Gordon, to show that Chewning & Eose were his special agents as to the Cary street property, and none other, and had no authority to make the sale in question, nor any sale, except subject to his approval or rejection.
Touching the question thus presented, three witnesses, A. J. Chewning and Edward S. Eose, who constitute the firm of Chewning & Eose, and A. J. Gary, formerly a clerk for Chewning & Eose, depose on behalf of the appellant. There is no consistency in the testimony of any two of these witnesses, nor is the testimony of either one of them consistent with the appellant’s theory of the case.
Chewning says that he was authorized by Col. Gordon to sell thirty feet, or upwards, at $40 a foot. This was on his examination in chief. On cross-examination he says he had authority to sell thirty feet, or upwards, at $40, and the whole at thirty-five dollars a foot. The witness, Gary, on his reexamination by the plaintiff, says that the instructions of Col. Gordon to the firm were to sell at least forty or sixty feet at $40 afoot; and that they did not have authority to sell thirty feet, for instance, as the lots were laid off in twenty-foot lots, and that they did not have authority to sell less than two or three lots of twenty feet each; while the witness, Rose, on his cross-examination, says that they had authority to sell the corner lot at $30, meaning, as he says, by the corner lot, twenty feet; thus showing a very wide discrepancy between the members of the firm of
Again, Mr. Chewning says that he never advised Col. Gordon not to sell the corner lot first, but, on the contrary, advised him to do so. Mr. Rose says he does not recollect, but he very probably did so advise him; and Mr. Gary says, positively and without hesitation, that he had frequently heard Mr. Chewning, certainly, and he thinks Mr. Rose also, advise Col. Gordon not to sell the corner lot first; thus again exhibiting their inconsistencies of statements. Mr. Chewning again says, that Col. Gordon never mentioned- any special terms upon which the property was to be sold, but said, “upon the usual terms;” and Mr. Rose says that no price or terms were ever fixed by Col. Gordon, except when the auction sale was proposed, and that they were then fixed with reference alone to the proposed auction sale. What the “ usual terms ” are, the record does not inform us, nor did the plaintiff (the appellant) in any way attempt to show what the “usual terms” are. Surely there can be no reasonable pretence for claiming authority to sell privately half of these lots, including the corner, at a price and upon terms admitted to have been arranged with reference to the proposed auction sale alone, and especially as Col. Gordon had determined, at the urgent solicitation of Chewning & Rose, to sell the property as a whole, or to sell first the lots farthest from the corner, and when they had given such excellent reasons for so doing, and when the sale in question was made six months after the time
In addition to the depositions of Mr. Catlin and of Col. Gor
Mr. Picot testifies that he heard Mr. Gary tell Col. Gordon that he had frequently heard him tell Chewning & Rose that he would not sell this property except as a whole, or unless they sold the lots furthest from the corner first. Now, Mr. Gary was a witness introduced on behalf of the plaintiff, and on his cross-examination, the proper foundation having been laid, he was asked if he had not made the statements testified to by Lecky and Picot, and he denied having made them.
It is obvious, taking the testimony of Gary, as it should be taken, in connection with that of Lecky and Picot, who distinctly, clearly and directly state what Gary said in their presence and hearing, that the weight of evidence is very greatly in favor of the appellee, as to the manner in which Col. Gordon required this property to be disposed of. In other words, the evidence clearly establishes, that the property was to be sold as a whole, or the lots furthest from the corner were to be sold first.
Moreover, the plaintiff (appellant here) invoked the aid of established custom, and to that end took the depositions of several real estate agents, but from them he derived no comfort. On the contrary, they, with possibly one exception, testify directly and positively that, under similar .circumstances, they would by no means have felt authorized to close a sale without conferring with the owner or principal.
And further, in order to uphold his claim that Chewning & Rose were the general agents of Col. Gordon, were by him clothed with ample authority, and held out to the public as such, the appellant places much reliance on the fact that the
But the question presents itself, if Chewning & Rose were the general agents of Col. Gordon, and as such, were clothed with full power and authority to make the sale and bind him thereby, without submitting their action to him, then why did they not arrange for the proposed auction sale without consulting him ? Why was it necessary to submit their proposition for a sale at auction to him, to urge his acceptance of same, and to arrange beforehand, under his personal superintendence and direction, the terms and minimum price at which he would permit the property to be sold at such auction? The day set for the proposed auction was more than seven months prior to the contract of sale here in question. How, then, can it be claimed with the least degree of consistencj, that an authority that was insufficient to authorize Chewning & Rose to arrange for and sell the property at auction, was yet ample, seven months later, to authorize a private sale in a manner and at a price wholly different from what was arranged for the contemplated auction, and that was, not only never authorized by Col. Gordon, but was forbidden by him. Col. Gordon’s name was not even mentioned in the advertisement; and, as before stated, it had reference only to the proposed auction sale and had, and could have, no reference or application to anything else whatever.
The appellant also relies upon the fact, that Chewning & Rose erected on the property in question their “ Board,” on which was printed, in large letters, something like this: “For sale,” or, “This property for sale, apply to Chewning & Rose,
Then, looking at the case in the light of' all the evidence, it is clear that Chewning & Rose were but special agents, with limited authority, as to the one particular piece of property; that they not only failed to communicate with Col. Gordon by telegram, when they could readily have done so, as others did, but neglected and refused to obey his positive instructions to them, and of their own will, without authority from him, undertook to sell a portion of the property, including the corner lot. How, then, was it possible for the learned chancellor below to arrive at any other conclusion than that announced in his decree.
It only remains to add, that the theory advanced by the appellant must necessarily fall to the ground, for want of that evidence essential to show that Chewning & Rose had authority to make the contract sought to be enforced in this suit. The contract attempted to be set up, was made by the appellant with Chewning & Rose, and was signed by the latter as agents for the appellee, by whom it was not authorized, and it is, therefore, without validity, and is incapable of enforcement. The specific execution of a contract for the sale of real estate rests in the sound legal discretion of the court. The plaintiff must establish the contract and prove it as stated in the bill, and the contract must be certain, fair and just in all its parts. Haskins v. Agricultural Fire Ins. Co., 78 Va., 707. In the present case, all these essentials are wanting, and therefore the appellant has no case.
The legal proposition asserted by the counsel for the appellant, that the owner of lands may by parol authorize another
Decree affirmed.