144 Va. 126 | Va. | 1926
delivered the opinion of the court.
. On February 16, 1922, T. A. Jennings, appellee, who resided at the corner of Fifteenth and Federal
On April 26, 1922, W. E. Graves, president of board of trustees, of Marshall Lodge Memorial Hospital, Inc., agreed to purchase the property in his own name-upon his own responsibility, at the price and upon the terms above stated, intending to turn his contract of' purchase over to the hospital if it wanted the property.
At Graves’ request the contract of sale was made in. the name of D. A. Payne.
The board of directors approved the action of its president, and it was agreed that Payne was to deed the property to the hospital.
Upon learning that the agents had agreed to sell the property to D. A. Payne, Jennings refused to approve the contract, denied the authority of his agents to make it, and declined to accept the $500.00. Later, when the balance of $2,500.00 was tendered to him on the cash payment he declined to accept it.
On April 28, 1922, Walker, Mosby & Calvert, Inc., had the contract of sale recorded in the clerk’s office of the city of Lynchburg.
On the third Monday in April, 1924, T. A. Jennings
The prayer of the bill is that the contract of April 26, 1922, between D. A. Payne and the complainant, by his. agents, be annulled, cancelled and delivered to the complainant.
The defendants, D. A. Payne and Memorial Hos.pital, Inc., filed their answer and cross-bill. They deny the charge of conspiracy to defraud and allege that they are bona fide purchasers, at all times since said purchase able, ready and willing to accept and pay for the property. They further charge that under the act of the General Assembly of 1922, granting all courts of record jurisdiction to make binding declarations of right, they are entitled to have their right, title and interest in the property fixed and determined by a decree of the court in the instant case.
The defendant, Walker, Mosby & Calvert, Inc.,
The case was heard upon the pleadings and depositions of witnesses, and the court entered the decree complained of, cancelling and annulling' the contract of April 16, 1922, and directing that the same be surrendered to the complainant.
The assignments of error involve the following questions :
1. Did the defendants conspire to deceive and defraud the complainant?
2. Was there a contemporaneous parol agreement between the complainant and his agents, and if so, was evidence of it admissible to abrogate or modify the authority given under the written contract of agency?•
3. Did Walker, Mosby & Calvert, Inc., have authority under the agency contract to execute the contract of sale binding Jennings to convey the property to Payne or the hospital?
4. Were the defendants, Payne and the lodge, entitled to the declaratory decree prayed for in their answer and cross-bill?
A real estate agent is generally a special agent of limited powers, and those dealing with him deal at their peril. Usually his only authority is to secure a purchaser who will take the property at a price fixed by the owner. He cannot, unless expressly or impliedly authorized, execute a contract of sale on behalf of his principal. Kramer v. Blair, 83 Va. 462, 13 S. E. 258; Halsey v. Monteiro, 92 Va. 581, 24 S. E. 258; Davis v. Gordon, 87 Va. 559, 13 S. E. 35.
In Yerby v. Grigsby, the contention was that the agent had no authority as agent for the owner to execute a coin tract of sale for the land, that his authority was merely to find a purchaser. The court, at page 390, says: “It has been there (in England) repeatedly settled that an agent authorized by parol to sign a contract for sale is thereunto lawfully authorized within the provisions of the statute (of frauds). The authority to sell implied authority to do everything necessary to complete the sale and make it binding upon the principal. It is on this principle that an auctioneer empowered to sell has always been held to be the agent of the vendor empowered to sign. In no one of the cases has it ever been required that an express authority to sign should be superadded to the authority to sell, although the authority to sign is certainly required by the statute. It has, in all of them, been taken for granted that an agent authorized to sell land is empowered to do every
In Smith v. Tate, 32 Va. 657, 664, the court approved the doctrine laid down in the Y erby-Grigsby Case, using the following language: “Being thus constituted agent and authorized to make the sale, he had authority to execute such writing, or enter into such written agreement as might be necessary, for the authority to sell implies an authority to do everything necessary to complete the sale and make it binding. Yerby v. Grigsby, 9 Leigh (36 Va.), 390, and authorities there cited.' In that case, Parker, J., said: ‘It is on this principle that an auctioneer empowered to sell has always been held to be the agent of the vendor empowered to sign. In no one of the cases has it ever been required that an express authority to sign should be superadded to the authority to sell/ ”
In Seergy v. Norris Realty Corporation, 138 Va. 572, 579, 121 S. E. 900, 903, Judge Sims, speaking for the
We find nothing in the authorities relied on by the appellee in conflict with the views we have expressed herein.
It is a rule of construction that the opinion of an appellate court must be construed in the light of the facts in the particular ease.
In Davis v. Gordon, 87 Va. 568, 13 S. E. 35, the owner said “it is for sale,” and expressed a desire that the agents would sell it, but no definite price was fixed upon the entire property. The court held that the agency was a special one, that the extent of the agent’s authority was in doubt and that the owner was not bound by a sale of the corner lot made without his consent and below the minimum price subsequently fixed by him.
In Kramer v. Blair, 88 Va. 464, 13 S. E. 916, the court held that there was no agency contract authorizing the agent to sell the property. Judge Lacy says: “In every letter to these agents Kramer said: T will take,’ or T will sell,’ or T have concluded to sell,’ or ‘my price is,’ and nowhere appointed any agent to sell for him.”
In Halsey v. Monteiro, 92 Va. 583-4, 24 S. E. 258,
The opinion of the court in Crews v. Sullivan, 133 Va. 478, 113 S. E. 865, recognizes the doctrine announced in Smith v. Tate, supra, but holds that it has no application in a case where the owner has not named the terms of sale, nor authorized the agent to name them for him.
In Seergy v. Morris, supra, the court approves the doctrine we have announced in the instant case, and holds that a real estate agent, who was authorized by the owner to sell the land at a certain price for cash, subject to all loans and leases, was not authorized to execute a contract binding the owner to sell the property for $250 cash, balance in thirty days, with no provision concerning the loans and leases. Judge Sims says there is nothing in the cases of Yerby v. Grigsby and Smith v. Tate, supra, in conflict with the conclusions in the Seergy Case.
The testimony taken in an effort to establish a
“No rule of law is better established as a general rule than this — that a written contract, whether under seal or not, cannot be explained, varied or contradicted by parol evidence.” Phelps v. Seely, 22 Gratt. (63 Va.) 573, 585.
In Martin v. Lewis, 30 Gratt. (71 Va.) 585, 32 Am. Rep. 682, the court says: “The general principle that evidence of a contemporaneous parol agreement is not admissible to vary or contradict a written instrument, is so familiar and well established as not to require any citation of authority. It is a principle which has now become one of the axioms of jurisprudence, and is of the last importance in the administration of justice. Without this general principle there would be no certainty in written agreements, and no security in the most formal contracts and the most specific transactions among men. It ought not to be weakened or frittered away by nice distinctions and ingenious exceptions, to meet hardsMps, real or supposed, or particular cases. Where the parties have reduced their agreement to writing, that agreement cannot be overthrown by evidence of a parol agreement proved by interested witnesses, or dependent for its establishment upon the slippery memory of men.”
The charge of conspiracy to defraud contained in the bill is not sustained by the evidence. Jennings had agreed in writing to convey the property with good
Since the terms of the agency contract left for the future determination of the owner the date of delivery of the possession of the property, which was a material detail in the execution of the contract of sale, we are of the opinion that the agent was not authorized to enter into the contract of sale with D. A. Payne in the name of his principal, and that the principal is not bound thereby.
Nothing we have said is intended to prejudice any of the rights of the agents or their principal in any controversy which may arise between them, which are not in issue and have not been considered in this opinion.
For the reasons stated, the decree will be affirmed.
Affirmed.