175 Iowa 47 | Iowa | 1916
-I. The defendant Groos, residing at San Antonio, Tex., owned 80 acres of land near Pioneer. The plaintiff claims to have purchased said land through defendant’s agent, J. F. "Whittman. In his petition, filed February 20, 1914, he prayed for the specific performance of a written contract, to which Whittman had attached Groos’ name by himself as agent. This contract, among other things, exacted the payment of $6,000 of the purchase price, 10 years after March 1, 1914, .with interest payable at Gilmore Exchange Bank, Gilmore City, Iowa, and that plaintiff “furnish an abstract showing good merchantable title on last mentioned date.” After the hearing had commenced, and on October 10, 1914, plaintiff filed an amended and substituted petition, alleging that he purchased of defendant the 80 acres for $9,600 by. written contract executed by Whittman in pursuance of authority given him in the correspondence hereinafter set out; that a binding agreement was. entered into.
II. The decision of these issues necessarily depends on the evidence adduced. On July 23, 1913, J. F. Whittman
“I have an offer on it $9,500. The party will give $500 now to bind contract, and $3,000, March 1, 1914, and a first mortgage of $6,000 at 5% for 5 or 10 years optional. That is, pay on any interest pay day $1,000 or more. Now then, if you want to sell on these terms, let me know at once, as this party is going to buy soon.”
He advised that the deal was a good one, and requested that if he would not do this, he state his best terms, and added that “Mr. Dodd of Humboldt is the party who wants to buy.” Groos answered, August 16th, saying:
“The terms as offered are not the most suitable, but I will agree to accept the terms as suggested in your letter, providing the party will pay $9,600 for the place, or $120 per acre.”
Whittman exhibited this letter to Dodd, who said to him, “I will take the farm today;” and handed him $50 in currency, with the understanding that, as soon as Whittman got
“Your letter of August 16th reed., and I ’phoned my man at once. He will take the place at $9,600, $120 per acre, terms as per my letter of August 13th. Will send you check and contract as soon as we can have same drawn up. I will enclose herewith check $50, to bind contract for the man, as he asked me to do this. Contract will follow, also ck less my commission, which is $80, $1.00 per acre.”
Whittman testified that he employed Yan Alstine to draw a contract; that it was signed in duplicate on the same day, when Dodd handed him an additional $450 in currency. The contract bears date August 19, 1913, but was acknowledged by Whittman August 23d following, was mailed to Groos August 27th, and recorded September 2d. On August 27th, Whittman wrote:
“Enclosed find contract, also draft for three hundred and seventy and 00-100 ($370.00) for payment as per contract, $50.00 mailed you August 19th, and enclosed $370, and receipt for $80, my commission, which completes the $500 payment, as per contract.”
Groos answered the previous letter, August 29th:
“Your letter of Aug. 19th, with enclosed check of $50.00 as payment on farm, came to hand. Will herewith enclose same check and return it to you, and will say that my wife will not consent to the selling of our place and never was in favor of it when I first offered it for $120.00 per acre, she feels that we ought to keep it as it is a safe investment and always brings in a nice income. I am also in receipt of a letter from a law firm and land agency of Humboldt, Iowa, saying that I had offered my place much to cheap. I acted hasty and without first consulting my wife when I first offered the place for sale, it may be that in the future or within a year or to that I can convince my wife that it will be best to sell.”
“Tour communication of Aug. 27th, 1913, with enclosed contract, draft of $370.00 and receipt of 80.00 came to hand last Saturday. Tou have no doubt received by this time my former letter with returned check of $50.00 and informing you that I desire to reject the entire matter pertaining to the selling of my land and also stated the reasons. The part of the contract which reads that a mortgage will be given on March 1st, 1914, in the sum of $6000.00, drawing interest at 5% per annum and maturing on March 1st, 1924, that part is objectionable; it is to long a time to accept a mortgage at such small interest for so many years, it should have been 6% for such a long time as ten years, and then $120.00 per acre would be selling the place about $10.00 per acre to cheap. It is not necessary for me to say more now in regard to this matter, as I stated my other reasons for not wanting to sell, in my former letter.”
"Whittman responded, September 3d:
“Enclosed find draft for $50.00 in place of check mailed you on August 19th, which you returned August 29. Now then, Mr. Groos, I sold your land according to your written instructions and sent you the payment down, less my $1.00 per acre. I made a written contract of sale and same is recorded. You cannot sell to anybody else. If you repudiate your contract, the buyer will at once begin suit for a deed, and if you fail to deed, the clerk of the court will make a deed. If your wife refuses to sign, one third of purchase price will be held by the clerk until she does. ’ ’
Groos’ final letter, of September 10, 1913, reads:
“Replying to your favor of September 3d, I herewith return draft unaccepted. I find that my place is worth more, and that I can secure more for it than the price you mentioned to me that it was worth. It occurs to me that you did not act fair toward me in representing same to be of the value you did; as you well knew or had means of knowing*54 that it was worth at least $8.00 or $10.00 per acre more. Further, I did not authorize you to make any contract with the buyer or to sign my name thereto; and I repudiate any such contract. The terms you made for me are not acceptable to me, as I would want at least one-half cash if I sold to anybody. From what I learn, about land values from adjoining property owners to mine, you know that my property is worth considerably more; and I have had better offers since hearing from you. But I am not disposed to sell at this time.
“But, to show I am fair to you for your efforts, without admitting or adopting any act you have made, I am willing to give to you the sum of $80.00 for your services in trying to secure a purchaser for the land. The price you suggested is imfair and unreasonable; and if I sold the land, I would want what was fair and right.”
At Dodd’s instance, "Whittman addressed Groos on February 3, 1914, as follows:
“Mr. Dodd ask me to write you in regard ‘Abstract;’ he would like that you send same to bank here that he can have same examined, as contract calls for settlement Mar. 1st, 1914. And Mr. Dodd ask me deliver the land he bought, so I guess it will be up to you to deliver the goods.
“Kindly let me hear from you.”
The decisions are quite generally to the effect that a written contract for the sale of land which the agent has signed on the parol authority of his principal is not within the statute of frauds, and may be enforced. Brandon v. Pritchett, 126 Ga. 286 (7 Am. & Eng. Ann. Cas. 1093, and note in which eases are collected). For this reason, such authority is not to be implied unless necessary to enable the agent to perform the service he has been employed to render. For this reason, the weight of authority seems to deny the right of an agent employed to sell to enter into a written contract with the purchaser, on the ground that many matters which the owner must determine necessarily are involved in making such an agreement. Halsey v. Monteiro, 92 Va. 581 (24 S. E. 258); Larson v. O’Hara, supra. Contra, Vanada’s Heirs v. Hopkins’ Admr., (Ky.) 19 Am. Dec. 92.
Of course, if the agent is given the power to sell, the power to do what is essential to effect an enforceable contract of sale is fairly to be implied; and this may be the execution