75 Neb. 241 | Neb. | 1905
This is a suit for specific performance of a contract for the sale of real-estate. The land which is the subject of the action lies within a certain quarter section in Webster county. A railroad running north and south divides the east half of the quarter into two nearly equal parts. The defendant Metcalf owned the west half of the quarter and all that portion of the east half lying west of the railroad. The alleged sale was not made by Metcalf personally, but by one claiming to act as his duly authorized agent. The only evidence in the record of the authority of the agent to act in the premises is in the following letter, which he received from Metcalf: “Enid, Ok., 8-29, 1903. A. M. Walters. I received your letter in regard to selling my place. I will sell all of the place for 4,700, or the south 40 separate. Will sell on easy terms. Simpson wrote me about a month ago. I told him he could list it if he wanted to for 6 months, but have not heard from him. I don’t know what he has done. If he has listed it or not you may see if you can seli either all together or the 40
On receipt of this letter the agent Walters notified Metcalf that he would list the land, and within a day or two thereafter entered into an oral contract with the plaintiff for the sale to the latter of a strip of land containing 40 acres extending from Metcalfs west line and along his south line to the railroad for $900, “rent corn to go with the land.” Plaintiff paid the agent $25 earnest money. Thereupon the agent sent the following telegram to Metcalf: “M. B. Metcalf, Enid, Old. Sold south 40, $900 cash. Rent corn goes with land. Wire approval. A. M. Walters.” There appears to have been some delay in the transmission of the telegram, and upon its receipt Metcalf wrote his agent as follows: “Enid, 9-6, 1903. A. M. Walters. I received your message, also your- letter, but got R. A. Simpson message first. R. A. Simpson sold the south 40. The other part of the. farm is for sale. Will set a price if any one wants it. N. B. Metcalf. Will give plenty of time at the rate of 6 per cent. Long time. Message was put in post office. They did not know Avhere I was.”
Three days thereafter he wrote the following letter to his agent: “Enid, Ok., 9-9, 1903. Mr. A. M. Walters. Your letter and telegram received in regard to selling the south 40. I received word from R. A. Simpson before I got Avord from you that he had sold the south 40. I wired him all O. K. If I had of got Avord from you first you Avould have got to handle the land but you could not make a deal the way you had, you had no right to sell the crop with the land. The crop was not for sale; also you Avas selling some of the land that don’t belong to that 40. I should of objected to both deals. I give you only south 40 for sale for $900. N. B. Metcalf.”
Metcalf repudiated the sale made by the agent Walters, and the purchaser brings this suit. The defendant Tow-bridge claims as Metcalfs vendee. The district court dis
The plaintiff’s theory is clearly shown by the following, taken from his brief: “These two letters (referring to the last two), together with the first letter and telegram, constitute the sale. * * * The question is not whether Walters made a sale of the land as agent of Metcalf, but was there a contract of sale consummated and completed between Metcalf and Frahm. No doubt Walters had authority to offer the land for sale on the terms proposed and contained in Metcalf’s letter first written to him, a copy of which is set out in the petition. And when Frahm accepted the offer Walters did not undertake to bind Metcalf by making and executing a written contract with Frahm as the agent of Metcalf, but for and on behalf of Frahm transmitted the telegram, a copy of which is set out in the petition.” There is at least one fatal objection to this theory, and that is, assuming that the first letter was an offer, which, upon its acceptance by the plaintiff, would become a binding contract, there is absolutely nothing in the record to show that it was accepted as made. It is expressly stated in the alleged offer that the land is to be sold “subject to the contract of J. Stabenow.” There is nothing in the evidence to explain what Stabenow’s contract was, but we infer from the argument that Stabenow was a tenant, in possession under a lease for a term of years, a share of the crop going to Metcalf as rent for the land. We also infer that Metcalf had sold his share of the crop, then standing on the land, to the tenant. But whatever may have been the nature of Stabenow’s contract, the land was to be sold subject to it. Such was the offer, and it is elementary that an offer is not binding unless accepted substantially as made From the evidence it would, appear that the plaintiff agreed to take the land at $900, “rent corn to go with the land.” That was not an acceptance of the offer as made, because it ignores Stabenow’s contract, unless the clause, “rent corn to go Avith the land,” is a reference to the contract. But the
In fact, we can discover no ground that would serve as a foundation for a decree for specific performance in this case. If we say that the sale was made by an agent, then the first letter set out is the only evidence in the record of his authority. That the acts of an agent are binding on his principal, only when within the scope of his authority, actual or ostensible, is elementary. There is no claim, and can be no claim, in this case that the ostensible authority of the agent was greater than that conferred by the letter just referred to. The authority of an agent for the sale of land is void under the statute of frauds unless in writing. O’Shea v. Rice, 49 Neb. 893. Where the act is one which requires an agent’s authority to be in writing, the party dealing with him must take notice of that fact, and is bound by any limitation or restriction contained in the written authority. Mechem, Agency, sec. 273. Here the statement in the letter that the sale was to be subject to Stabenow’s contract was a limitation on the authority of the agent. As the law required his authority to be in writing, the plaintiff is charged with notice of that fact, and when he entered into a contract with him for the purchase of the land, without any reservation as to Stabenow’s contract, he knowingly contracted beyond the scope of the agent’s authority, and the contract is not binding on the principal.
Even had the agent authority to make the contract, it was void under the statute of frauds, because no note or memorandum thereof was made and signed by Metcalf.
We are of the opinion, therefore, that in any view of the case the plaintiff is not entitled to a decree for specific performance, and we therefore recommend that the decree of the district court be affirmed.
By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is
Affirmed.
