Lester v. Kinne

37 Conn. 9 | Conn. | 1870

Loomis, J.

The decree of the court in this case enforces the specific performance of a parol contract for the sale and conveyance of the fee of certain land described in the record as the “Potter Lot.”

Wc consider the decree erroneous, for the following reasons.

1. It compels Coon, one of the respondents, to perform an agreement which he neither made nor authorized to be made.

It was claimed by the petitioner that Coon made the agreement through Kinne, the other respondent, who acted as his agent. If Kinne had any authority from Coon to make an agreement in his behalf, it must be derived from the following facts as found by the court: “It appeared from the evidence, and is found, that said Coon authorized Kinne to negotiate for the sale of said premises, and to sell the same on his, said Coon’s consent, and that the said Coon never expressly authorized him to sell the fee of said Potter lot, nor has said Coon ever authorized said sale of the fee of said Potter lot, or assented to the same, unless his authority and assent may be inferred from the foregoing facts, and particularly from the following: that said Coon resided at Norwich, where the final arrangements of said sale were made, and at that time had interviews with said Kinne ; that the petitioner thought, when making said agreement, that said Kinne had full power and authority from said Coon to make the same; that said Coon has conveyed a portion of said premises and has received his pay, not only for that conveyance, but also for the fee of said Potter lot, and had the same in his hands when said deed was tendered to him for execution, and still has the same in his hands.”

It seems from the above that the only authority in fact given by Coon to Kinne was to negotiate for the sale of the land in question, but not to sell except upon Coon’s consent, to be given after Kinne, by such negotiation, should have ascertained the terms upon which such sale could be made. If any other authority was given, it must be inferred and implied from the facts stated, but none of the facts referred to have any particular significance upon the question of agency, except the statement “ that said Coon has conveyed a portion of said premises, and has received his pay not only for that conveyance, but also for the fee of said Potter lot, and had the same in his hands when said deed was tendered to him for execution.” This fact would doubtless amount to a full ratification and adoption of the act of Kinne in making the sale, and would be conclusive upon Coon, provided only that the latter had previous knowledge of the material facts of the transaction. But the court finds expressly, that “ until within a month previous to the service of the petition Coon had no knowledge, and did not suppose, that the sale by Kinne included the fee of the Potter lot.” The whole foundation for any agency by subsequent ratification is thus utterly taken away, and it is clear that there was no authority, express or implied, in Kinne, to include the fee of the Potter lot in the sale. Coon in giving a deed of the right of flowage to the Griswold Paper Company, and in receiving his portion of the money, had no knowledge, nor suspicion even, tnafc the sale by Kinne included the fee of the Potter lot, and he was not so informed till about five months after the transaction. He had executed the agreement in every particular, just as he understood it, and had received the money belonging to him for what he had actually conveyed.

2. The foregoing facts not only show that there was no agreement made by Coon, but also show that if a parol agreement had been made there could not have been any such part execution of the contract as would deliver the case from the statute of frauds.

The acts done in part performance, in order to take the case out of the statute, must be such as are necessarily to be imputed to the agreement, and should be done solely with a view to the identical agreement being performed that is sought to be enforced. The acts of Coon therefore could have no effect as part pei'formance beyond the terms of the agreement as he made and understood it.

8. The decree also is erroneous in that it seeks to enforce a contract essentially different in its terms from the contract proved in evidence.

The decree requires the respondents “ to execute and deliver to the petitioner, or to whom he may designate, a deed which shall convey all their interest in the land described in the aforesaid agreement, which was purchased by them of Elisha Potter, and known as the Potter lot, conveying the same free of all incumbrances, except the right of flowage heretofore conveyed Dy them to the Griswold Paper Company.”

The agreement which the court finds the respondents made, was “ to convey the fee of the Potter lot, subject to the right of flowage, to Nathan B. Lillibridge.” There is no provision whereby the petitioner, or any person by him designated, can obtain the title from the respondents. It is a conveyance to Lillibridge and to no one else. The agreement therefore, as actually made, instead of being enforced specifically by the decree, is utterly defeated by it, in that it gives to the petitioner, Lester, or to some other person whom he may designate, tliat which belongs to Lillibridge, if to any one besides the respondents.

4. Another objection to the decree is, that Lester, in whose favor it was obtained, does not appear to have any interest in the subject of the suit, or any right to the thing demanded. The most that can be inferred from the facts as found by the court is, that the petitioner was a mere agent of the Griswold Paper Company, to whom the deeds already executed have been delivered, and who have paid the entire consideration for the land. ■

The relations of the petitioner and Lillibridge are not at all disclosed, nor is any reason suggested for giving the fee of the Potter lot to the latter.

There is nothing on the record to indicate that either of the two parties really interested demand anything more of the respondents than they have already received, and nothing to show that the present suit is prosecuted by the petitioner for their benefit. We consider it a well established principle in chancery, that the plaintiff must have some legal or beneficial interest in the subject of controversy involved in the suit, and which the decree may affect. Crocker v. Higgins, 7 Conn., 342, Story’s Eq. Pl., (Redfield’s Ed.,) §§ 76a, 231, 231a, 236.

We are of opinion that there is manifest error in the decree complained of and it is reversed.

In this opinion the other judges concurred.

Judges Phelps and Loomis of the Superior Court were called in to take the places of Judge Hinman, deceased, and Judge Butler who was ill.