85 Neb. 739 | Neb. | 1910
This is an action for specific performance of a contract for the sale of real estate executed by an alleged agent of defendant. Plaintiff prevailed, and defendant appeals.
1. It is argued that the petition does not state facts sufficient to constitute a cause of action. Plaintiff alleges that defendant on the 15th of December, 1907, owned the land in controversy, but resided in Iowa; that he corresponded with Myers, a real estate agent in Nebraska, “with the view of employing the said Myers to sell the land for him” 'by February 1, 1908, for $5,600; that Myers agreed to defendant’s terms, “and entered into the employ of the defendant, by letters to defendant, which are now in his possession”; that Myers failed to sell for the price named, but received an offer of $5,000 therefor and communicated that fact over the telephone to defendant. “In said conversation the said defendant, L. W. Lambert, authorized and employed his said agent, O. H. Myers, to close said deal and sell the premises at that price”; that said agent did sell the farm to plaintiff, received part of the purchase price, and executed a contract in the name of his principal. A copy of the contract is made part of the petition. Defendant, answering, admits that he owns the land, and denies all other allegations in the petition, but alleges that by letter he authorized Myers to sell the land for $7,600, and “that the only authority the defendant gave to the said O. H. Myers to sell the land was the authority to sell the same for the amount and on the terms above stated.” He repudiates the contract sued on.
2. It is urged that the evidence does not sustain the judgment. The bill of exceptions discloses that defendant wrote Myers December 15, 1907, asking, among other things: “What in your judgment the quarter () lying northeast of town and owned by me could be sold for between now and the first of February.” Myers immediately answered by letter that, owing to crop failure and the existing panic, land in his neighborhood could only be sold at a bargain; that defendant’s farm was worth $6,000, and “I have a man who will pay you $5,600 cash for it.” December 19 defendant wrote Myers, stating: “Yours of the 18th at hand this ins’t, will say in reply that if I am to receive $5,600, less your commission $150, you may go ahead and close the deal with the man, but it must be clearly understood that the man must assume the mortgage of $2,000 that is against the place and accept the papers just as I hold them. They consist of a mortgage deed guaranteed by John Everson.” The man referred to in Myers’ letter failed to secure money to pay for the land. Myers negotiated with other individuals, and finally plaintiff offered to pay $5,000 for the farm. December 25 Myers talked over the long distance telephone with defendant. Up to this point there.is no dispute as to the facts, but from thence forward there is a conflict. Myers testifies that he explained the situation fully to defendant; that he experienced no difficulty in hearing defendant’s language; and that, after being advised, defendant urged the witness to go ahead, close the deal, and
It is further urged that general authority was not given Myers, but that he was empowered to sell to a specific individual. We do not agree with connsel. Lambert did not know the proposed purchaser, or his name, and his personality could not have entered into the principal’s granting or withholding authority to his agent. The letters demonstrate Lambert's anxiety to sell before February 1, 1908. ITis subsequent conduct and his pleading indicate clearly that he did not construe Myers’ agency as his counsel now urge it should be interpreted. Under the circumstances of this case, we think that, in so far as Myers had power to sell the land, his authority was general as to the person to whom it might be sold.
Finally, defendant contends that, viewed in the most favorable light for plaintiff, the evidence must leave the court in doubt as to whether or not Lambert understood Myers’ statement over the telephone and authorized a diminution in the price for which his land might be sold. Stanton v. Driffkorn, 83 Neb. 36, is cited by defendant upon this subject. This objection, to our minds, presents the only serious question in the case. The evidence is clear and satisfactory that Myers, on Christmas of 1908, told defendant the facts over the telephone. If we credit Myers and Hall, defendant understood that the land could he sold for $5,000, but for no greater sum, and Avith that knoAvledge he directed Myers to “close the deal at once so that this fellow wouldn’t get aAvay.” The only way ihe deal could be closed Avould be to perform some act or acts to Satisfy the statute of frauds, and this Avas done.
Upon a consideration of the entire record, the district court was justified in finding that Myers had authority to make the contract in suit, and that through him the minds of the parties did meet with a common intention with respect thereto. Whether a contract shall be specifically enforced rests largely in the sound judicial discretion of the trial court. The record presents little for consideration other than the credibility of witnesses who appeared and gave their testimony in open court. The trial court was in much better situation than we are to know which of those witnesses were telling the truth, and we are not convinced that error was committed in finding for the plaintiff.
We have not made specific mention of all the arguments presented by defendant. They have been considered, but are not believed to be important in settling the rights of the parties hereto.
The judgment of the district court is
Affirmed.