87 Ark. 221 | Ark. | 1908
Lead Opinion
(after stating the facts.) “Authority to convey can only be given by deed, while authority to sell may be given by parol.” Clark & Skyles on Agency, § 227; Daniels v. Garner, 71 Ark. 484. A contract for the employment of an agent to find a purchaser of lands is not within the statute of frauds. McCurry v. Hawkins, 83 Ark. 202.
While there is a slight error in the description of the land in the written power to Raleigh & Morris to sell, describing it as 70 x 70 feet instead of 70 x 75 feet, yet authority to sell the property in controversy was indisputably given by parol, and in the writing there was a mere inaccuracy of description. The written contract of sale signed by the brokers was sufficiently definite in the description of the property to identify it and enable it to be properly conveyed. Lane v. Queen City Milling Co., 70 Ark. 355; Harvey v. Douglass, 73 Ark. 221; Darr v. School District, 40 Ark. 237; Walker v. David, 68 Ark. 544.
“In the absence of special authority or custom or usage to the contrary, an agent authorized to sell land usually has no implied power to sell on credit.” Clark & Skyles on Agency, § 232; Henderson v. Beard, 51 Ark. 483. Therefore, it must be taken that the authority of Raleigh & Morris in this case was limited to sell for cash, and the primary question is, whether the memorandum of sale called for cash or credit. If it was a credit sale, it was beyond the scope of the agent’s power, and Gans was not bound. If this was a credit sale, Gans would not be bound for the further reason that no definite time or term was fixed for the payment of the credit, and it would be too indefinite • for specific performance. If, on the other hand it was a sale for cash, the defenses of Gans are cut from under him.
The price was to be $35,500, payable $10,000 cash and the balance to be arranged to the satisfaction of the owners. Under a contract essentially similar to this, Chancellor Zabriske said: “The only material part of this contract that is not definite, is the credit to be given on the mortgage, and whether with interest or not. * * * Here there was no agreement for any time. The purchaser is not entitled to any credit. In such case the mortgage should be made payable on demand; and it is the duty of a court of equity, in order to prevent a fair and just agreement from being defeated by a mere technical objection, to presume that such was the intention of the parties, and to give the agreement that construction. This makes the written agreement certain in all its parts.” This case went before the Court of Errors and 'Appeals, and was . affirmed. Richards v. Green, 23 N. J. Eq. 32 and 536.
In Sturdivant v. McCorley, 83 Ark. 278, Mr. Justice Riddick, speaking for this court, said: “As no time was set for the payment, the debt was in law payable on demand. * *• * The courts generally hold that a debt payable on demand is due immediately, so that an action can be brought at any time without any other demand than the suit,” citing authorities.
These principles control here. The purchase price was $35,500. The agent arranged for $10,000 to be paid in cash, and the balance to the satisfaction of the owners, which would only mean that if the owners would accept credit and fix terms thereof -it could be so arranged, but if the owners did noc extend the credit the $35,500 was payable on demand. Had Kempner refused to perform the contract, then Gans could have tendered a deed and recovered the $35,500 of him. 9 Cyc. p. 260, 300. This being true in regard to Kempner, the converse is likewise true in regard to Gans, and he must be held to be bound to convey as Kempner was bound to pay.
The contract was valid, and Kempner is entitled to specific performance. Reversed and remanded with directions that a decree for specific performance be entered.
Rehearing
on rehearing.
Opinion delivered July 13, 1908.
Counsel question the correctness of the statement that “authority to self. the property in controversy was indisputably given by parol.” This is the necessary inference to be drawn from the testimony of the whole case. The broker told of the written authority, which he exhibited, and identified the property in controversy as the property which he was authorized to sell, and gave the correct description of it. Then he told of reporting to Gans the sale which he had made of this property to Kempner, and of the negotiations with Gans on the rate of interest on the deferred payments; and it is shown that all matters were acquiesced in but the rate of interest. And he further testifies that, after a conference of\ the brothers, Sol Gans told him to tell Kempner that “he had withdrawn it from sale.” It is also in evidence that Gans offered the agent his commission for making the sale, and told him to tell Kempner that they had changed their minds; and that Kempner then interviewed Gans on the subject, who told him that they had changed their minds and would not sell the property.
All of this is incompatible with .the theory that the written authority was all which existed, and that it did not call for the property which the brokers sold to Kempner. The property intrusted to the brokers to sell was undoubtedly the lot on the south side of Second Street, between Louisiana and Center, containing a two-story brick building. The court regards it as Indisputably established that the broker had authority to sell this particular property, and the description in the written authority was a mere mistake as to the depth of the 'lot, and did not limit the dimensions of the lot to be sold. Probably it would be more accurate to state that authority to sell the property was given, and it was indisputably shown that the property to be sold was that in controversy; but, so far as the questions in this case are concerned, it is not important which statement is taken as the more correct summary of the evidence. The authorities cited, particularly that of Dorr v. School Dist., 40 Ark. 237, show that parol evidence as to the identity of property described in a written instrument is not inadmissible on account of the rule forbidding parol evidence to explain, vary or modify a written instrument. The property in the written power being 'identified with .the property in the memorandum of sale, and the description being sufficient for the purpose of identifying it, it matters not whether there was parol authority to sell the particular property or whether the parol testimony only made certain the property intended by the writing to be sold.
The arguments on the other questions have been considered, but the court fails 'co find any reason for changing its opinion.
The motion is denied.