5 Kan. 552 | Kan. | 1870
This is an action brought in the court below by defendant in error to enforce the specific performance of a contract for the sale of land. The question involved is whether the agent is shown to have been legally empowered to bind the plaintiff in error in making the contract.
The agreed state of facts on which the case was decided is as follows:
“ That the defendant is the owner of the land in the petition mentioned; that he authorized said J. O. W. Paine to sell said land; that said authority was not in writing; that said instrument in writing in the petition set foi’th was executed as set forth therein, but that said Paine, who signed the defendant’s name to said instrument in writing, had no written authority or appointment so to do; that the plaintiff has deposited in court, the sum of money in said petition mentioned; that said defendant refuses to execute a deed to said land, as is set forth in the petition.”
These facts with the allegations of the pleadings, raise the question whether an agent can bind his principal in a contract for the sale of land, when not authorized so to do in writing. A question just now of considerable practical importance to the community generally, as well as to the parties to this suit.
Real Contract : ^ysmajfb“by'iml loL That the authority of an agent to contract for , ° the sale of land may be established by parol evidence, notwithstanding section six of the statute of frauds and perjuries [General Statutes, 505] is so well settled by a long course of adjudications, that it would be superfluous for this court to give reasons for upholding the rule. It has long been a rule of property, well known and acted upon, and at this moment is doubt
We refer to a few of the cases whore the point has been decided as indicated. [Shaw v. Nudd, 8 Pick., 9; The inhabitants of Alma v. Plummer, 1 Maine, 1; Mc Worter v. McMahon, 10 Paige, 386; Worrall v. Munn, 5 N. Y., 229; Dodge v. Hopkins, 14 Wisc., 641; Johnson v. Dodge, 17 Ill., 433; Doty v. Wilder, 15 id., 407; Irvine v. Thompson, 4 Bibb, 295.] In England; Coles v. Trecothic, 9 Vesey, Jr., 249; Emmerson v. Hulis, 2 Taunton, 38; White v. Proctor, 4 id., 209.
The counsel for the plaintiff in error refers to section eight in the chapter on conveyances, [Gen. Stat., 186,] as furnishing a rule for the guidance of the. court in this case. This section has no application, because the chapter and section treat of conveyances and not of executory
The point as decided above was also raised on the demurrer to the answer, and attempted to be raised by the demurrer to the petition. The action of the court below in sustaining the demurrer to the answer, is approved upon the principles herein settled, and overruling the demurrer to the petition on these as well as other grounds, not necessary here to state. 1 Maine, 1.
The decision must be affirmed.