91 Neb. 553 | Neb. | 1912
Plaintiff brought suit in the district court for Scott’s Bluff county for the specific performance of a contract of sale from defendant to plaintiff of the southwest quarter of section 7, township 21, range 53, in that county. From a judgment in plaintiff’s favor, defendant appeals.
Succinctly stated, the correctness of the judgment depends upon the question whether plaintiff ever unconditionally accepted any offer to sell made by defendant, or defendant ever unconditionally accepted any offer to purchase made by plaintiff.
The negotiations between defendant, who resided in Chicago, and plaintiff, who resided in Scott’s Bluff county, were conducted by one John C. Trotter, a real estate agent, who also resided in Scott’s Bluff county. Some time about, or shortly prior to June 1, 1908, defendant gave Mr. Trotter the following written authorization: “Mr. Trotter is authorized to sell my place adjoining town of Minatare for $105 an acre, within six months from
All of the authority conferred upon Mr. Trotter on or prior to April 19, 1909, is contained in the written memorandum and two letters above set out. On the last named date negotiations between plaintiff and Trotter were reduced to writing, as follows: “Minutare, Nebraska, April 19, 1909. This contract and agreement entered into by and between Laura S. T. Cox, party of the first part, and S. R. Roberts, of Scott’s Bluff, party of the second part, witnesseth: That for and in consideration of the sum of $10,425 to be paid by the said party of the second part, to the said party of the first part in the time and manner hereinafter specified, the said party of the first part lias agreed to sell, and convey to the said party of the second part the following described land in Scott’s Bluff county, Nebraska, to wit, the southwest one-fourtli of section seven, township twenty-one, range fifty-three, less ten acres already sold on north side, but still containing one hundred and sixty acres. And the said party of the second part has agreed to purchase all of the above described land, and to pay for the same the said sum of $16,425 in cash, as follows, $100 cash in hand at the signing of this contract, the receipt whereof is hereby acknowledged, and that $2,900 be paid on June first, 1909. Anri $3,000 June first, 1910. Interest at 7% per annum, and $10,425 to be paid June 1st, 1914, interest 7 per cent, per annum. And it is further agreed that at the time of payment of $2,900 June first, 1909, party of the first part will convey by good and sufficient warranty deed, the above described real estate, consisting of one hundred and sixty acres together with all the improvements belonging to her, thereon, together with four shares of Minatare' Mutual Ditch stock. The party of the first part
On the same day Mr. Trotter made and delivered to plaintiff a receipt as follows: “April 19, 1909. Received of S. R. Roberts check for $100 for payment on land S. W. \ sec. 7-21, as per contract of this date. J. C. Trotter.”
On May 9, after having received the proposed contract of April 19, defendant wrote Mr. Trotter as follows: “My Dear Mr. Trotter: Your note and contract for deed came to hand as well as the telegram, but you must have mistaken the sense of the agreement I made to sell quite a little. No one that I know of out there has given more than two shares of water with a quarter section of land, and as I knew this at that time as much as now, I cannot think I promised four water rights with my land. Then as to this contract, I would not sign anything of this kind, if I understand it, at all. It seems to me to bind me to sell my land with only $100 down, and no security whatever. Now, Mr. Trotter, you know, no man would let property go in this way, and though I’m a woman I’m trying to learn about business, and I surely cannot. Had the three or four thousand been in the Minatare or S. Bluff Bank, for me, when you wanted me to contract away my land, it might have been different, but we may as well drop this selling for the present. I don’t see why this year’s rent could be expected anyway, when the ten
On May 16, 1909, and after receipt of the above letter, Mr. Trotter had prepared and signed by plaintiff another proposed contract, as follows: “Minatare, Nebraska, May 16th, 1909. Whereas on the 19th day of April, 1909, a certain contract in writing for the sale of the southwest one-fourth of section seven, township twenty-one, range fifty-three, in Scott’s Bluff county, Nebraska, wherein Laura S. T. Cox is party of the first part, and S. R. Roberts of Scott’s Bluff is party of the second part; and whereas it is stated therein that party of the first part as consideration for said lands is to receive therefor the sum of $16,425 cash, part in money in hand, and the balance in payments, and whereas through the mistake, inadvertence and oversight of the party drafting the writing omitted therefrom the matter and manner of the securing of the said balance of deferred payments: Now, this writing is made and executed for the purpose to set forth the whole of said contract, and the said omission therefrom so as to show the contract as made by and between said parties which is as follows, to wit: Minatare, Nebraska, April 19th, 1909. This contract and agreement entered into by and between Laura S. T. Cox,
It is upon this record that plaintiff bases his claim for specific performance of this so-called contract. We deem, it unnecessary to enter upon any extended discussion of this record. It sIioavs upon its face that Mr. Trotter had no authority to bind the defendant, as was attempted to be done, by either the agreement of April 19 or the amended agreement of May 30. That plaintiff kneAV the limitations upon Trotter’s authority is fully sIioavu by the uncontradicted testimony of Mr. Trotter, who, AArhen introduced as a witness by plaintiff, testified: “The fact of the business' is, that I submitted the correspondence between me and Mrs. Cox to Mr. Roberts to see what I could do. I followed Mrs. Cox’s instructions as near as I possibly could. It was not my understanding that I was to do this, but there is nothing in this transaction that Mr. Roberts did not understand. He kneAV just what I could and what I could not do. There is nothing about this that I wish to withhold from the court, and I will answer anything.” And again: “I did not put up any talk to Mr. Roberts, I simply showed him the correspondence, and shoAved him what I thought I had authority to
This is not, therefore, a case where plaintiff was dealing with an agent and relying upon any ostensible authority on the part of the agent. He knew exactly what the agent’s authority was and the terms upon which the agent was authorized to sell defendant’s farm. The terms proposed by defendant were not unconditionally accepted by plaintiff. Even in the amended contract of May 16 it is attempted to bind defendant to do things which she had never promised to do, and some of which, in her letter of May 9, 1909, she had expressly refused to. do. It is clear that defendant never authorized the making of either the contract or amended contract, under which it is sought to bind her, and that the minds of the principals to this contract never met. It is also clear that by the letter of May 9 defendant declined plaintiff's offer to purcha.se, as outlined in the proposed contract of April 19, refused to sign or in any manner ratify that contract, and withdrew her farm from Mr. Trotter; and that thereafter he was without authority to in any manner represent or bind her in reference thereto. It follows that the district court was in error in awarding plaintiff specific performance of this so-called contract.
As the entire transaction between plaintiff and defendant, and Trotter, as defendant’s agent, is fully disclosed by this record, and it clearly- appearing therefrom that plaintiff is not entitled to any relief at the hands of defendant, this vexatious, litigation against her should end. The judgment of the district court is therefore reversed and the cause remanded, with directions to the district court to dismiss the suit at plaintiff’s costs.
Reversed.