75 P. 1115 | Kan. | 1904
The opinion of the court was delivered by
In September, 1901, the Philadelphia Mortgage and Trust Company, a corporation, was the owner of a half-section of land in Harper county, which had been leased to J. P. Hardesty for the year expiring March 1, 1902, for the sum of fifty dollars, due October 1, 1901, for which Hardesty had given his note. J. W. Clendenin and R. H. Lockwood, of Wichita, composing a firm known as J. W. Clendenin & Co., were agents of the Philadelphia company
The case was sent to the jury upon two principal issues of fact: First, whether Clendenin & Co. had made an agreement with plaintiff for the sale of the land ; and second, if so, whether they had authority to bind the corporation to such agreement. The jury found specially that the agents sold the property to plaintiff without reserving the rent; that they had no authority to make such a sale, but that the corporation had ratified it. There was no evidence of ratification, and therefore these findings would, of themselves, require a reversal if these issues were properly submitted to the jury. But there was no conflict of testimony upon these matters and all substantial evidence affecting them was in writing. Whether the various letters and telegrams established the agency and the contract was purely a question of law. Whatever authority the agents had was derived from a letter written to them by the corporation on September 16, giving a statement of terms on which a sale might be made, concluding with the words, “It is understood that this year’s rents will come to
The correspondence between Hardesty and Clen-denin & Co., regarding the proposed sale, included at least ten letters and telegrams on each side. Various matters of difference arose ; various conditions were sought to be imposed and afterward withdrawn, while in the meantime other questions had arisen. Intelligently to present the question whether at any time the minds of the parties met upon all substantial matters and thus completed a contract, it is necessary to review these writings in some detail.
The negotiation was begun by Hardesty writing to Clendenin & Co., asking the price of the land. They replied, saying that the price was $1200, to be paid half in cash and half on time, at six per cent, interest.
The matter of this lease and rent not having been mentioned, the agents may be said to have agreed that a warranty deed should be delivered at once. This would leave the grantor liable to the grantee for the fair value of the use of the land from the time of sale to the ensuing March — in effect accomplishing a division of the season’s rent between the buyer and seller, an arrangement presumably equitable but one not authorized by the agent’s instructions. Had Hardesty at this point offered to carry out the contract according to its very terms, he doubtless would have had a right to insist upon its performance, so far as the agents were concerned.; but this contract, nothing yet having been stated to the contrary, contemplated the payment of the purchase-price at the home of the
On September 23 Hardesty wrote to Clendenin &
“You can make deed to M. Hardesty, as instructed in former letter, and send it to the Bank of Hazelton, Kansas, and on receipt of it will pay you $1100. With the $100 you already have got, will make the $1200. So you see you have all cash instead of any time, which will suit you better. Of course, I demand .an abstract, deed, clear of all encumbrance. Now, if this don’t suit you, return the check for $100 and the trade is off.”
■ The requirements insisted upon in this letter as to sending the deed to the Bank of Hazleton and furnishing an abstract had never been agreed to by Clen-denin & Co., and it is too clear for argument that whatever may have been the earlier condition of the negotiation, at the time this letter was written there was no contract between the parties. Clendenin & Co., on September 24, notified Hardesty that they had sent the deed to Morris, at Anthony, together with the note given for the rent. Morris was instructed to deliver the deed only upon the payment of the note as well as of the purchase-price. On September 26 Hardesty wrote as follows :
“Just received a letter from one Charley Morris. Who is Morris and what figure does he cut in our deal, ordering me to get my money out of the Bank of Hazelton and carry it around over the country and to hunt him up and take up deed ? I stated in my letter to you that your money was in the Bank of Hazelton ; to send the deed there and collect your money. I have n’t the time to go and hunt up other parties in this deal unless there is something in it. My time is -worth money to me at present.. Send deed to the Bank of 'Hazelton and I will fix up the matter. Hoping to hear soon.”
Hardesty, however, did call upon Morris and offer
“I have just been over to the Bank of Hazelton and find the deed is n’t there yet for the Davis land. I received a letter from you advising me to go to Hazel-ton and take up those papers. I want you to understand that I will not have anything to do with Morris in this matter. Now, I will give you until the 15th of the month to send the deed to the Bank of Hazelton, as you agreed to do. I had to borrow part of the money to settle the interest business and it is an expense to me right along. If you did n’t want to sell the land to me for '$1200 clear of all encumbrance, why did you do it ? Or if you did n’t intend to send deed to Hazelton at all, why did you say so ? Now, I will refer you to my letter of September 28. You had a chance then to return my check if you didn’t want to sell the place for $1200, which you did n’t do, and now you are into it. You will find $1100 in the Bank
On October 8 Clendenin & Co. sent Hardesty a check for $50, retaining the remainder of the $100 he had paid them, claiming it upon the rent. On the 10th Hardesty returned their check and began his action for damages.
It thus appears that while at one time the correspondence between plaintiff and the owner’s agents showed an offer to buy and an unconditional acceptance, thus making a valid contract, plaintiff himself repudiated this agreement and insisted upon imposing additional conditions; that in the course of the new negotiations which followed, and before a further agreement had been reached, the requirement was made in behalf of the owner that plaintiff should pay the year’s rent — in effect that he should take the land subject to the lease ; that this demand was never afterward withdrawn and was never acceded to. There was, therefore, no contract that could be enforced in this action, even apart from any question of the au-, thority of the agents to make it. Plaintiff waived whatever rights he might have asserted under the terms of the original agreement, and a subsequent agreement was never reached.
The judgment is reversed and a new trial ordered.