71 Miss. 823 | Miss. | 1894
delivered the opinion of the court.
On a former appeal in this cause the question involved was as to the sufficiency of the description of the subject-matter of the contract to relieve it of objection under the statute of frauds, and we then held that it was permissible to look to all the writings signed by Herndon in the negotiation leading to the sale, and that, by so doing, it sufficiently appeared what land was intended to be sold. Everman v. Herndon, 11 So. Rep., 652.
The question involved in this appeal is whether the defendant, Herndon, is bound by the contract of sale entered into by Cross Bros., who professed to he authorized by and to act for him, by which they agreed to sell to appellants, Everman and Blanton, the lands now sued for. "When the cause was remanded on the former appeal, the parties were at issue upon the original and amended hills, and proceeded to take depositions preparatory to final hearing thereon. During the taking of the deposition of tlie defendant, Herndon, a fuller disclosure of certain parts of the correspondence between this defendant and Cross Bros, led the complainants to exhibit a second amended bill, to which the defendant demurred, and his demurrer was sustained. The cause was then set for final hearing upon the original and first amended hill and exhibits, answers and proof, and on such hearing the original -and amended bills were dismissed. The errors assigned bring into review the decree sustaining the demurrer to the second amended bill and the decree made on the final hearing. Under our practice in chancery, exhibits filed with a bill are a part of the bill, and are considered on demurrer as if copied in the bill. Code 1892, § 528.
By the second amended bill the entire correspondence
It is evident on the whole record that the complainants do not rely upon the creation of an agency in Cross Bros, for the defendant, Herndon, except by this correspondence, none of which is denied by the defendant. ■ On this branch of the case the same question was presented on the hearing of the demurrer and on final hearing, and, since the cause is finally disposed of by us on the question common to both, we shall deal with the two decrees as one.
It is contended by counsel for appellants that, in the correspondence between the defendant, Herndon, and the firm of Cross Bros., authority was conferred upon said firm, as agents for this defendant, to sell the lands in controversy at the price of $5 per acre cash, and that the communications between these parties on the fifth, sixth, tenth and thirteenth of June (which is hereinafter specifically seL out) was not in derrogation of the agency before that time existing; that, if it be true that the memorandum of sale executed by Cross Bros, on June 14 (which is also hereinafter set out) would not be a valid execution of the agency created by the telegrams and letters of June 5, 6, 10 and 18, it was authorized by the agency before that time conferred on them.
Counsel for appellauts do not point to the writing antedating the telegram of June 6, by which the agency of Cross Bros, to sell the laud was created, nor have we been able to discover any such authority from the correspondence. It does appear that Cross Bros, desired to be authorized either to sell the land for the defendant; Herndon, or to secure the right to commissions on a sale to be made, if they could find a purchaser for the land.; but there is nothing in the correspondence antedating June 6 from which it could be deduced that Herndon had appointed them as his agents, or that they SO' understood. The only agency we can discover in the cor
“ Clarksville, Tenn., June 4, 1889.
“Mr. John L. Cross:
“Dear Sir — -Your favor to hand and contents noted. I would sell my land in Mississippi for $5 per acre cash. Can give perfect title. Would ask about the same for timber as for land and all. Mr. 11am has my plot. I seut it to you, and, after I got it back, I sent it to Ham. Write him for it.”
On June 5, Cross Bros, wrote to Herndon as follows;
“ Memphis, Tenn., June 5, 1889.
“T. Herndon, Esq., Clarksville, Tenn:
“Dear Sir — In reply to your letter, will say I think I can sell your place for four thousand, (800) acres; one-half cash, balance in one and two years, with 8 per cent, from date. Please inform me if I must close at that price and terms. Wire at my expense. Resp. Cross Bros.”
On June 6, Herndon sent this telegram to Cross Bros.:
“ Clarksville, Tenn., June 6, 1889.
“Cross Bros., Beal Estate Agents:
“Accept the four thousand dollar proposition. If necessary, will come Friday night. T. Herndon.”
On the same day Herndon -wrote to Cross Bros, as follows :
“ Clarksville, Tenn., June 6,1889.
“Messrs. Gross Bros., Memphis, Tenn.:
“ G-ents — Your favor to hand and noted. There are 830 acres in my tract, and I propose to put it at $5 per acre. My deeds are all on record in Coahoma county, Miss.
“Yours, etc., T. Herndon.”
“ Memphis, June 6, 1889.
“ T. Herndon, Clarksville, Tenn.:
“Proposition accepted. Particulars by mail.
“ Cross Bros.”
Several other letters passed between Herndon and Cross Bros, after June 6 and before June 15, but they are unimportant. On June 15 the following written contract was signed by Cross Bros.:
“ Memphis, Tenn., Juñe 15, 1889.
“ This is to certify that we have this day sold to Everman and Blanton 880 acre's of ground in Coahoma county, Miss., for the sum of $5 per acre, and owned by Captain Thomas Herndon, of Clarksville, Tenn., and we, Cross Bros., being said Thomas Herndon’s authorized agents. And we hereby accept the sum of ($200) two hundred dollars as part payment on said land. Witness our hand, this fifteenth day of June, 1889. Cross Bros.”
It does not appear that the terms of this instrument were communicated to Herndon by Cross Bros, or by Everman and Blanton until after he had assumed the position that Cross Bros, had not been his agents to make auy contract of sale whatever of the lands. There" is an absence, therefore, of evideuce of ratification by him of the act of Cross Bros, in attempting to bind him by the sale.
It seems to have been assumed by all the parties that Ever-man and Blanton were to be the purchasers of the land, for Messrs. Perkins & Percy, their attorneys, made an investigation for them of Herndon’s title, in which certain irregularities and deficiencies were disclosed. This fact having been communicated to Herndon, he employed thes.e gentlemen to perfect his titles, which they proceeded to do. In writing to Herndon, Messrs. Perkins & Percy frequently called his attention to llie fact that Messrs. Everman and
The validity of the agreement made by Cross Bros., professing to act for Herndon, must, therefore, rest upon the fact that they were his agents, authorized to enter into the contract with Everman and Blanton, and thereby to bind them. As we have said, there is nothing in the record showing that, prior to June 6, any other relation had existed between Cross Bros, and Herndon than that of broker and customer, and, in that relation, it is well settled that the agency of the broker extends only to bringing the parties together. He is not authorized to make sale of the customer’s land, or to make a contract of sale binding on him. 2 Am. & Eng. Enc. L., 592; Morris v. Ruddy, 20 N. J. Eq., 236; Roach v. Coe, 1 E. D. Smith, 175 ; Grant v. Ede, 85 Cal., 418, s.c. 20 Am. St. Rep., 237; Duffy v. Hobson, 40 Cal., 240; Walker v. Osgood, 93 Am. Dec., 168, notes.
The principal may, however, authorize the broker tó make a contract of sale or to execute the conveyance; but, in such cases, the broker, like other agents, must act within the delegated authority. Looking to the only authority given by Herndon to Cross Bros, to make sale of the lands, it is found to be limited to that of accepting “the four thousand dollar proposition.” The telegram in which this authority was given created whatever agency existed in Cross Bros, to make a contract of sale. This firm was thus specially authorized to do and perform one particular act — viz., to ac
There was no fact to which Everman and Blanton might justly appeal tending to prove that any other agency than that created by the telegram existed, and it did not authorize Cross Bros, to make the contract which they made on the fifteenth day of June. They were authorized “ to accept the four thousand dollar proposition,” which was to pay that sum, one-half in cash and the balance in one and two years, with interest at eight per cent, per annum from date. They entered into an agreement, under which the whole purchase-price was payable in cash, which may have been a better or worse contract than that they were authorized to make, determinable. by circumstances, but which was certainly not the contract they were directed and empowered to make. In legal effect, here was an offer by Herndon to sell his land at a fixed price, one-half in cash and the remainder in one and two years, with interest at eight per cent., and a counter-proposition by Everman and Blanton to buy at the price named, payable in cash. There is not a legal identity between the contract which Cross Bros, were authorized to make and the one they attempted to make, and their principal, Herndon, was not bound. Batty v. Carswell, 2 John., 48; 1 Am. Leading Cas., 653; Schultz v. Griffin, 121 N. Y., 294, s.c. 18 Am. St. Rep., 825.
The complainants in their pleadings refrained from averring in what manner the purchase-money was to be paid by them, but averred a willingness to pay the entire sum in cash, or to pay one-half cash and execute their notes for the remainder at one and two years, with interest at eight per cent., and they contend that, since, by the terms of the agreement.
Looking through the whole record, we find that the defendant, Herndon, agreed to sell his land for $5 per acre, one-half in cash and the balance in one and two years, with interest at eight per cent. The complainants agreed to buy at the price named, but the purchase-money was to be paid in cash. Cross Bros, were authorized by Herndon to make sale on the terms of his offer; they in fact made an agreement for him to sell on the different terms of complainants’ offer, which act on their part was never ratified by Herndon. On these facts the law is with the defendant, and the decree of the court below is
Affirmed.