Lowman v. Nye & Ormsby County Bank

31 Nev. 306 | Nev. | 1909

By the Court,

Norcross, C. J.

(after stating the facts):

In so far as there is any conflict in the evidence upon any material facts, the verdict of the jury has determined such facts in favor of the defendant.

Section 1624 of the civil code of California provides: "The following contracts are invalid, unless the same, or some note or memorandum thereof, is in writing and subscribed by the party to be charged, or by his agent: * * * 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing subscribed by the party sought to be charged. * * *”

It is contended that under this provision of the statute of the state in which the property was situated that Lisle could do no act in reference to the mining properties in question, binding upon the plaintiff, excepting he was authorized in writing so to do. Further, that the plaintiff could only ratify the act of his unauthorized agent, in making delivery of the deed, by the formality of writing. It may be conceded that Lisle did not have a power of attorney that would authorize him to execute a deed for the plaintiff; but it is not so clear that he was not authorized by the plaintiff in writing sufficiently to warrant the defendant bank to act upon his directions in delivering up the deed to be recorded for the purposes detailed in the testimony. The cashier of the defendant bank was shown a letter from the plaintiff to Lisle in which he (Lisle) was informed that if he was fortunate enough to have a chance to dispose of any of their mining interests "to go right ahead and use my [Lisle’s] own judgment and that he [Lowman] would stand by my [Lisle’s] action.” Lisle had previously negotiated the sale of another group of mines—the "Anaconda Group”—for the sum of $60,000, subsequently made a deduction of $10,000 from the purchase price, and all this without any authority other than the letters of the plaintiff.

The transfers of the money on all these mining deals was made through the defendant bank. Only five days before the date of the contract for the sale of the "C. U. Group” the plaintiff wrote a letter to Lisle in which he said, " Should you have a chance in disposing of any of the property before I make any arrangements with any parties here, it is all satisfactory to me.” In the same letter, doubtless referring to the Anaconda deal, the plaintiff says: "Now, I would like to know how you did tie up the property and what arrangements. What kind of a bond you gave, as I am in the dark about it.” Here, it seems to us, was a recognition that Lisle had from plaintiff very extensive powers to deal with their mining interests. This letter was written after the plaintiff’s visit to the mining properties in July, 1906. Plaintiff testified that prior to his visit to the Greenwater district in July, 1906, he had written "several letters” to Lisle in which he told him, "that he could do with the Greenwater properties as he pleased or as he saw fit, but that after such visit he wrote no such letters.” In this latter statement, plaintiff’s memory was defective as is shown by his letter of August 9th. From all the facts and circumstances shown in this case, we think it cannot be said that the defendant bank did not exercise due care in surrendering the deed upon Lisle’s assumption of authority.

It is contended, however, that all prior dealings between Lisle and plaintiff were merged in the written contract of August 14th. We are not impressed with this contention. That contract was negotiated practically in its entirety by Lisle, and the plaintiff did nothing more than execute the agreement and deed upon its receipt, except to make certain immaterial changes in the agreement. We are unable to see anything in the execution of this agreement that should cause the defendant bank to assume that the agency of Lisle had in any sense been changed. Lisle had made the terms and conditions of the sale under the authority of the plaintiff’s letters. We think the defendant bank was justified in the assumption, from all the facts in its possession, that Lisle had the authority to modify the terms of the agreement, especially when it appeared that it was not at all likely that the original agreement could be carried out, and the change was deemed favorable to the plaintiff’s and his associate’s interests.

But, conceding that the showing as to Lisle’s authority was insufficient to justify the defendant bank in surrendering the deed, plaintiff could ratify the action of Lisle and be bound thereby. Lisle testified that on or about March 10,1907, he informed the plaintiff fully as to what had transpired between himself, Nash, and the defendant bank on February 9th preceding, and that the plaintiff approved of everything. This testimony of Lisle we must accept as true for the purposes of this appeal. There are other matters in the case that tend to support the fact that plaintiff ratified the action of Lisle. Although he knew the first payment of $13,500 was not made on March 14,1907, and had received Nash’s letter of March 31st in which the sixty days further additional extension was referred to, as well as the transaction of February 9th, recited in the proposed agreement accompanying the letter, it was not until May 13th that he caused his bankers to address a letter to the defendant bank demanding return of the deed unless the payments had been made. This was about the time the money would be due under the second modification of the original agreement. In any event, the proof of ratification is sufficient. A delivery of a deed not authorized by a grantor may be ratified by his subsequent conduct and acts. (13 Cyc. 565; McNulty v. McNulty, 47 Kan. 208, 27 Pac. 819.)

The judgment and order appealed from are affirmed.

Sweeney, J., did not participate in the foregoing decision.