17 S.D. 563 | S.D. | 1903
This is an action to enforce the specific performance of an alleged contract for the sale of a quarter section of land in Beadle county. Findings and judgment in favor of the plaintiff, and the defendant has appealed.
The appellant was a resident of Faribault, Minn., and the alleged contract was made with the plaintiff by Thomas &'Smith, real estate agents of Huron, in this state, in the name of the appellant. By the alleged contract the appellant agreed to convey to the plaintiff the property described in the complaint upon the payment of $1,000, and was signed by Artemetia Bacon, by Thomas & Smith. The "authority of the agents to make this contract is based upon certain letters purporting to have been written by the appellant to the agents, and signed. “Mrs. ■J. Bacon.” All of the letters purporting to have been signed by Mrs. J. Bacon were in fact written and the name of Mrs. J. Bacon signed thereto by her daughter, Pearl Bacon, about 25 years of age, who resided in the family with her mother; but
It clearly appears from the evidence of the appellant and of her daughter, Pearl Bacon, that the appellant was not present when the letters were written or signed in her name, did not dictate them, and did not know the contents of the same. It is true that between the appellant and Pearl Bacon there seems to have been a general understanding in regard to the selling of this property, and that Pearl was verbally authorized to transact a part of the mother’s business and the business pertaining to this property. It is conceded by the appellant, as we have seen, and the rule seems to be well settled, that where the name of a party is signed to an instrument in the presence of the party, and by his authority, and where he knows the contents of the same, the signature will be regarded as the signature of the party whose name1 purports to be signed to the instrument, but the rule does not seem to have been extended to include cases where the party whose signature appears to the instrument-was not present when his name was signed thereto, and where he was not fully acquainted with the contents of the instrument. It is true that the daughter, Pearl, lived with her mother, the appellant, in the same
It is insisted by the respondent that the appellant, in the last letter purporting to be signed by her, in which she, in effect, repudiates the contract, did not make the objections that are now made in her brief by her counsel, and that, therefore, she is estopped from,making these objections now. But it appears from the evidence that the last letter was written and signed by the daughter, and it nowhere affirmatively appears that the appellant even knew of the contents of that letter, and it is affirmatively shown that it was not written or her name signed thereto in her presence or by her direction. The contention, therefore, that she is estopped by that letter, is clearly untenable. She is no more bound by that letter than by the former letters written by her daughter and her name signed thereto when she was not present. The objection, therefore, that the admission of the contract in evidence should have been sustained by the court or disregarded by it in making its finding was clearly correct, and the court committed error in finding that the contract executed by Thomas & Smith in the name of the appellant was a binding contract upon her.
It is not claimed that the contract between Thomas <fe Smith and the plaintiff was ever sent to her, or that she had at ftny time any knowledge of this contract. The $25 draft sent by Thomas & Smith did not disclose the name of the purchaser,
The second contention of the appellant — that, assuming that the letters had been signed in her name, in her presence, and by her authority, with full knowledge of the contents thereof, still there was no sufficient authority in Thomas & Smith to execute the contract for the sale of the property with the plaintiff which would be binding upon her — presents an important question, but one, in our view of the case, we do not deem it necessary to decide upon this appeal; hence we express no opinion upon it at this time.
The judgment of the circuic court and order denying a new trial are reversed.