16 S.D. 553 | S.D. | 1903
In this action to enforce specific performance of a contract to convey real property plaintiff had judgment, and the defendant Schull appeals.
The authority of J. E. Wess to bind the defendant Grant by a contract of sale executed and delivered to respondent on -the 17th day of May, 1899, depends upon the force and effect of certain letters offered and received in evidence. O. E. Dewey, through whom appellant, Schull, purchased the premises, was, and for more than six years prior thereto had been,
On the 17th day of May 1899, when Wess contracted to sell the land to respondent for $950, his only authority to act is contained in the letter of the preceding March, in which Grant referred to his agent, Dewey, and stated that he thought he would sell for about $1,000, and asked Wess to let him'know as soon as possible if he could sell or rent the property. In his next letter he refers to the fact that $1,000 was the price mentioned, and ■ that Dewey was his agent, and says, among other things, “I think you had better see Dewey if he is there and see what the taxes are and have him make out a deed and send it to me to sign,” Mr. Wess was sufficiently advised that Dewey must be consulted before the consummation of the sale, and, had the entire correspondence taken place prior to the date of the contract upon which respondent relies, it is not of that clear, convincing, and unconditional character that justifies specific performance. Clearly, Wess entered into the written contract with respondent without authority, and Grant’s subsequent letters fall susceptibly short of unconditional ratification on his part. When Wess made the contract with respondent, appellant was in actual possession under a valid lease executed by Dewey, on the part of Mr. Grant, and all parties were advised of the. authority of Dewey to lease or sell the property. Ail negotiations between Wess and Grant recognized the authorized agency of Dewey, and his right to a portion of the commission when a sale was made; and in response to the letter of Wess containing the first statement of particulars, together with a deed for Grant’s signature, the
The testimony is insufficient to sustain the conclusion that Wess was authorized to make the contract in suit, and the negotiations never culminated in such an unconditional agreement that justifies a court of equity in decreeing specific performance. The view we have taken renders unnecessary the consideration of other points argued by counsel.
The judgment appealed from is reversed as to Schull, and the case remanded for further proceedings, not at variance herewith.