Mathews v. Gilliss

| Iowa | Jun 15, 1855

Lead Opinion

Weight, C. J.

We have above an outline of the present case. Some facts may have been omitted, to which we will revert, however, in the consideration of the legal questions involved. These questions may, for convenience, be considered under these heads: First. Had Johnson the power, under the authority given him, to make the contract and sale to Mathews, in the manner and on the terms specified in the agreement of the 1st of May, 1851 ? Second. If he had not, was such agreement subsequently ratified, so as to entitle the plaintiff to a specific performance, and a conveyance of this land ? Third. If, in either event, the contract was binding, has plaintiff so far shown a compliance with its terms, as to entitle her to the relief sought ?

The defendant’s counsel, in argument, raise, perhaps, the further question — that the transaction between plaintiff and Barkley was, in truth, a new and another contract •, and not being in, writing, was void, as against tbe statute of frauds. But, as we understand tbe plaintiff’s counsel to claim these acts as a ratification of tbe contract with Johnson, and not to seek to recover upon it as a new or different contract, it will be unnecessary to consider this point. It has also been suggested, that tbe tender of tbe ninety dollars was not proved. This point has not been made by one of tbe counsel, and barely referred to by the other. The original offer in writing to pay, with tbe oath, is made an exhibit. What proof, if any, was produced to prove it as an exhibit, is not shown; and without intimating an opinion that this is one of those papers contemplated by section 2428 of the Code, we think it but just to decide the case, upon those points affecting the merits of this controversy, and upon which counsel, in their very full and able arguments, have relied.

Our first duty -is, to give a construction to the instrument of March 29, 1851, and to ascertain whether Johnson had the power, under that, to make the contract for the sale of the eighty acres, and these lots, to Mathews. Much has been said as to this instrument; many cogent reasons have been urged in favor of the different constructions claimed; and the instrument is not, perhaps, altogether free from ambiguity. After a careful examination, however, we conclude, that Johnson had not the power to make the sale to Mathews, in the manner provided in said agreement. This view is sustained by two principal reasons, if not more. Giving to language its ordinary'signification — taking into consideration the position and residence of the parties; — the subject matter upon which the instrument was to operate — and construing the whole together, and not in parts, we conceive that the most that can be claimed is, that the 880 acres of land was to be sold entire, and not less than one block of the lots at a time. However this may be as to the lots, as to the land, the defendant appears to have been particularly definite in making the authority specific. The first says, “for all my land, 880 acres, at $10 per acre, $8,800.” . And then, after giving the number of the lots, and blocks and prices, he says, “the above lands I will sell all together, at the above prices.” The use of words, that contemplate tbe sale of all tbe-.lands at one and tbe same time, would entirely exclude tbe idea tbat tbe lands could be sold in separate parcels; and especially so, wben by omitting tbe words “all” and “ all together1,” this intention might have been, to some extent, negatived. Indeed, in air instrument so concise, it would be difficult to use language more definite in this respect, than was employed by tbe defendant. And this view, receives additional force from other considerations. It is not probable tbat each acre of these lands was of tbe same value. It is almost a part of the judicial history of this state, tbat these shares consisted of lands and lots scattered over this tract, and through tbe towns and cities thereon situated. Rut, however this might be, it is but reasonable to say, that each forty, eighty, or one-hundred and sixty acres, would and did differ in value. Under such circumstances, it would be unreasonable, to say the least, to suppose that Gilliss intended that Johnson, should sell indistinct parcels, receiving ten dollars per acre for all alike. And, again, if he intended' that each lot might be sold separately, and the lands divided into parcels, why not affix a price to each lot, or each parcel of land, instead of carrying out the sum that he would take for' each block and the entire body of land.

Again; by the terms of the power, one-half of the purchase money was to be paid in hand; but by the agreement with Mathews, no money was to be paid down, but the first payment of one-half was to be made on the first of July, 1851. This construction is controverted by plaintiff, on several grounds. It is claimed, that the paper which is first signed by defendant is complete in itself and shows that he would sell the property in that method and for those prices; but that the second is a distinct paper, confers the power, and affixes no terms. Barkley, in his deposition, however, states, in substance, that these papers were both made at once, all the same transaction; and that the list and prices were made out by him for defendant, and given to Johnson. Independent of this, however, we think that both must be taken together. Otherwise, the second part would be *mdefinite and void of meaning. This refers to. tbe lands and lots, and says that “ Johnson is authorized to-sell them at the above prices.” What those prices are, we can only determine from the first part. And further, it is not reasonable, that Grilliss would give power to-an agent to divide and sell his land in parcels, at the very same moment that he had in effect, declined doing the same thing himself. The rule that plaintiff insists upon, that where doubt arises, the instrument, in its construction, is to be taken most, strongly against the principal, has also been considered. It must be remembered on this point, however, that this power was special, given in writing, and none of it rested in parol, or was to be gathered by implication. It was also a naked power, uncoupled with an interest, and revocable at the pleasure of Gilliss. The power conferred was, therefore, to-be determined from the instrument itself. The -rule insisted upon by plaintiff, was never designed to extend or enlarge the powers conferred, or to change the construction of the written power. It was plaintiff’s duty to satisfy himself of the power of the agent in the premises, and if he improperly judged of such power, it would be unconscionable to permit the principal to suffer by such mistake of judgment on his part. We must construe this instrument according to its apparent import, and not allow it to be warped and changed, in order to harmonize with any uncertain or indefinite suppositions. And this it was the duty of the plaintiff to do. These views, we think, aré clearly sustained by the case of Sage v. Sherman et al., 2 Comstock, 417, referred to by plaintiff. It is there stated, that this doctrine of protecting third persons who have been injured by the excess of the exercise of power by the agent, does not apply, unless the agent is acting in the business intrusted to him, and substantially according to the instructions of his principal. We think we have shown, that Johnson did' depart from and exceed the power conferred; and this power being special and limited, subject to the inspection of plaintiff, and not general, he should not, and could not, well have been misled. Williams v. Peyton, 4 Pet. 395 ; Story on Conk §§ 239 and 284; Odiorne et al. v. Maxey et al., 13 Mass. 177" court="Mass." date_filed="1816-03-15" href="https://app.midpage.ai/document/dawes-v-edes-6404439?utm_source=webapp" opinion_id="6404439">13 Mass. 177; Delafield v. State of Illinois, 2 Hill, 159 ; Hammond v. State Bank Mich., Walk. Ch. 214.

We now come to the question, whether this contract was subsequently ratified ? We think it was. What the agent Barkley did while in Keokuk, in October, 1851, it is true, is not given to us in such systematic detail as would have been expected, in view of the importance of his action on the parties1 rights. But, taking all the circumstances in connection, we regard it as sufficiently clear, that he there adverted to this sale, and recognized the power of Johnson to make this contract. The circumstances as we derive them, from all the testimony, are about these: Barkley was, when Johnson was in Kansas, Mo., the friend and agent of ■defendant, and superintended his business, doing his writing, and perhaps signing his name; for he says in his deposition, in effect, that Gilliss did not sign the authority given to Johnson, but that he did for him, and had such power, and the validity of such signature is nowhere denied by Gilliss. Before he came to Keokuk, he was aware of this sale to Mathews; for he speaks in his deposition, of Johnson’s having sent a deed to Gilliss, for his signature, under the contract with Mathews. When he arrived in Keokuk, Mathews was unable to comply with his contract entire. And here let us say, that if Mathews had been able at that time to so comply entire, there can be no question but Barkley would have conveyed to him the property. But Mathews being unable to so comply, by mutual arrangement Barkley proceeds to sell all except this ten acres. And with-cut giving any weight to the release or releases, executed by Mathews on the back of the contract with Johnson, we think their mutual arrangement is sufficiently evident, from the fact that the parties were frequently together, and Barkley, on two occasions, at least, refused to sell this ten acres, though offered an advanced price therefor. Now, he made no new contract with Mathews, for there is no pre-tence that there was any change of amount or price per aere, time of payment, or anything of that kind. We con-elude, then, there was sueh ratification for the following reasons:

First Barkley was the witness of defendant, and lie nowhere negatives such ratification. This ratification was alleged in plaintiff’s petition and was a question in dispute between the parties — he was the person who knew all about what he did and did not do; and this was within the knowledge of defendant. And yet, when it would have been so easy to have negatived such ratification by this agent, if it was true, the defendant entirely fails to ask him any question tending to elicit such negative.

Second. Such alleged ratification is nowhere expressly and specially denied in defendant’s answer. There is a general denial of the prayer, statements and allegations contained in plaintiff’s amendment to his original petition. ■ And while the averment of ratification is contained in such amendment, and while the answer is specific in its denial of every other material allegation; yet as to this leading and important averment, there is no such denial. If there was no such ratification, it is a little remarkable that defendant failed to so aver, especially, where, in a chancery cause, at least, without reference to'the provisions of the Code, a specific, and not a general, denial or answer, is required. Woods v. Morrell et al., 1 Johns. Ch. 103" court="None" date_filed="1814-07-27" href="https://app.midpage.ai/document/woods-v-morrell-5550056?utm_source=webapp" opinion_id="5550056">1 Johns. Ch. 103; M. E. Church v. Jacques et al., Ib. 65; Mitford Ch. Pl. 376; Story’s Eq. Pl. § 35; Daniell’s Ch. Pl. & Pr. 833, 835.

Third. The acts of' Barkley in demanding payment of the purchase money, and recognizing the plaintiff’s claim, lire inconsistent with any disaffirmance of the contract. He says, that he “ did demand of plaintiff seventy-five dollars, it being one-half of the purchase money for the lands described in the plaintiff’s third interrogatory (being this ten acres), about the 19th or 20th of October, 1851, the said amount being then due on said land, upon the sale of the said ten acres from said Gilliss to said Mathews.” Now, whatever power Johnson had, was in writing; and while Gilliss might not have been bound by such of his acts as were not warranted by the power, yet he could afterwards adopt and ratify snob acts, and to do so, no particular form ■of words or instrument was necessary. He might ratify in •a great many ways. Lent and another v. Padelford, 10 Mass. 229 ; Odiorne v. Maxey et al., 13 Ib. 177; Fisher v. Willard Ib. 399; Shaw v. Nudd, 8 Pick. 9 ; Meritt v. Clason, 12 Johns. 103 ; Emerson v. Newbery, 13 Pick. 397; Amory v. Hamilton, 17 Mass. 103; Parker v. Byrne, 2 S. & M. 193 ; Clark's Ex. v. Reimsdyke, 9 Cranch, 153" court="SCOTUS" date_filed="1815-02-28" href="https://app.midpage.ai/document/clarks-executors-v-van-riemsdyk-85106?utm_source=webapp" opinion_id="85106">9 Cranch, 153; Barbour v. Craig, 6 Litt. 213; Thorndyke v. Godfrey, 3 Greenlf. 429 ; Chitty on Cont. 176; Carnes & Lord v. Bleeker, 12 Johns. 300" court="N.Y. Sup. Ct." date_filed="1815-08-15" href="https://app.midpage.ai/document/cairnes-v-bleecker-5473552?utm_source=webapp" opinion_id="5473552">12 John. 300 ; 2 Kent, 615, 616. To the suggestion, that Barkley had no power to ratify that contract, we give no weight, for we consider that the power of attorney under which he acted, gave him as full power in the premises as Gilliss had; and that his assent, or failure to dissent, would be and was as obligatory, as if <xilliss himself had been present.

The only remaining question, is, whether plaintiff shows herself entitled to a specific' performance of this contract. That it was competent for'these parties to affix their own conditions, as to making time and other matters of the essence of the contract, cannot be controverted.- And if they have so done, we shall not hesitate t© enforce it, and shall not interfere to make a new contract for them. Unless, however, they have exjoressly treated time as of the essence of the contract, or unless it necessarily follows from the nature and circumstances thereof, it is not to be so. deemed in equity. This general proposition, is so well settled as to -scarcely need authority or argument to sustain it. See, however, Story’s Eq. Jur. 776, Hepburn v. Ault, 5 Cranch, 262" court="SCOTUS" date_filed="1809-03-14" href="https://app.midpage.ai/document/hepburn--dundas-v-auld-84905?utm_source=webapp" opinion_id="84905">5 Cranch, 262; Brashier v. Gratz et al., 6 Wheat. 528" court="SCOTUS" date_filed="1821-03-14" href="https://app.midpage.ai/document/brashier-v-gratz-85340?utm_source=webapp" opinion_id="85340">6 Wheat. 528 ; Pratt and others v. Carroll, 8 Cranch, 471; Mitford Eq. Jur. 461, 462.

We do not think that time has been made expressly of the essence of this contract, nor have the parties so treated it. Had it been so regarded, Barkley would so have declared while in Keokuk. On the contrary, instead of declaring the contract forfeited, because the first payment was not made at the time specified, he demanded the same, and Says he was willing to take it. Had it been so regarded, the defendant would baye sold tbis land, wben tbe offer was made to purchase by other persons, to bis agent. That it was not so regarded, is further shown from the fact, that from October, 1851, to July, 1853, a period of almost two years, he does not declare the contract forfeited, give any notice to that effect, nor do anything to dispose of the property. And, in addition to these suggestions, is the further fact, that the parties failed to provide in express terms. This they could have done,*'* and having failed so to do, the plaintiff cannot claim, that which he might haVe fixed by contract.

Compensation, and not forfeiture, is the doctrine and practice of courts of equity in these cases. In yiew of these general propositions, the next inquiry is, whether the plaintiff has been guilty of such negligence in asserting her claim, or delayed in the performance or offer to perform the contract, for such length of time, as that she is not entitled to relief. All that her husband was to do, was to pay the purchase money. He avers, .and introduces testimony tending to show, that he did pay Johnson seventy-five dollars in October, 1851. We may as well say here, however, that we give the plaintiff no benefit from that payment. Johnson, by the terms of his power, had no authority to receive this money. The plaintiff himself so regarded and treated it, by subsequently consenting to pay the same. And Barkley, instead of ratifying this part of the transaction, expressly dissented, and demanded that it should be paid to him. So that this part of the decree, will in no event be disturbed. On the next day, after the last payment waá due, however, plaintiff offered to pay the two last payments, and on the same day, commenced this suit. If a failure sooner to offer payment, and assert his claim, amounts to gross laches ; or such time had elapsed as shows negligence, unexplained by equitable circumstances, the plaintiff’s bill should be dismissed. It is not necessary that there should have been a strict, legal compliance with the terms, unless the non-compliance goes to the essence of the contract. We do not regard this failure, as amounting to such laches. > And especially so, when it does not appear, that defendant has been prejudiced by sucb delay. He bas not acted upon tbe contract as forfeited — made improvements on tbe land — sold tbe same, or any part thereof — nor in any way does be appear to bave acted in sucb a manner with reference to it, as that it would be inequitable or unconscionable to enforce tbe contract. He bas sustained no injury, unless it arises from tbe fact, that tbe land bas increased in value, and tbe plaintiff thereby bas tbe benefit of a good'1 and fortunate bargain; and tbe defendant is deprived of tbe opportunity of selling it for sucb advanced value. If this was sucb an injury, however, as the law contemplates, then no contract for the conveyance of land could perhaps be enforced; for no instance would be found where the land had not decreased or increased in value, after tbe contract was made, and thus the vendor or vendee might claim to be injured. Can there be any pre-tence, but that Grilliss could bave enforced this contract against Mathews? We think not. And though this land had declined in value ever so much, Mathews would bave been bound by his agreement. Why, then, are their remedies not mutual, and why should defendant be released from his liability, because of tbe advanced value of tbe property, unless there have been laches on plaintiff’s part? There bas been no other change of circumstances, affecting the character or justice of the contract. All tbe plaintiff contracted for was compensation, or pay for his land, and not forfeiture, and this he gets by the decree. If plaintiff is not able to perform his part of’ tbe contract, then, of course, the decree will be inoperative. And while there has not been that prompt payment of the purchase money, that the strict rules of the common law would demand, yet we do not think there was sucb delay and laches, as under all the circumstances, should operate to dismiss his bill. ■

Many of the points made, by the very full arguments of defendant’s counsel, bave not been noticed in detail. Indeed, to do so, would extend this opinion an unreasonable length. We conceive that our views thereon, are already sufficiently indicated, without further enlargement. But as the proceedings on the part of the complainant, have not been en-feely free from doubt, it is deemed just that sbe should pay "tbe costs of tbis cause. The decree will therefore be affirmed as to all things, except the costs, and reversed as to them.

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Concurrence Opinion

Wood'Ward, J.

1 concur in the result which the court has come to on the whole case, but desire not to be concluded ‘•on one or two points.

I agree that Johnson was not authorized to make the contract, which he did'make'; but am inclined to think, he could receive the first payment on any contract which he was au-4horized to make. IF he could not, the plaintiff’s cause is probably deficient in the tender.

I hardly consider the proposition, that time is not of the '-essence of the contract, as a principle or rule of equity. It rather embraces the exceptions to the rule, stated in opposite terms.