100 P. 225 | Mont. | 1909
delivered the opinion of the court.
This action was brought to recover the sum of $1,000 and interest. The complaint alleges that about June 1, 1905, plaintiff and defendant entered into a contract by which plaintiff agreed to purchase from defendant, and defendant agreed to sell to plaintiff, the Denver Block in Helena; that, pursuant to said agreement, plaintiff paid to the defendant $5,000 on the purchase price, and collected certain rents from the property; that thereafter, about June 20, 1905, by mutual consent, the contract was rescinded, and each party thereto agreed to return to the
The insurance company owned the Denver Block in Helena, and T. B. Miller was its agent for the purpose of renting the building and collecting the rents. The plaintiff, being desirous of purchasing the property, interviewed Miller, who on May 6, 1905, wrote to the company inquiring the price for, and the terms upon which, the property would be sold. The answer of the company indicated that it would want about $40,000 for the property. This was not satisfactory to Schaeffer, and at Miller’s suggestion Schaeffer made an offer for the property, and on May 17 Miller assumed to transmit this offer to the company in a letter in which he says: “He [Schaeffer] will purchase the Denver Block, paying therefor $30,000 on the following terms: $5,000 cash, $2,500 in two years, $2,500 in four years, and $20,000 in ten years, interest on deferred payments to be at the rate of four per cent. Deed to be given when $10,000 has been paid on the property and contract for deed given prior to that time. He will pay the taxes for this year and in the future. He would want you to allow the insurance in force at the time of purchase to remain without any expense to him.” In reply to this, the vice-president of the company on May 24 wrote: ‘1 Our directors are willing to accept an offer of $30,000 for the property,- but not on the terms proposed.” On May 31 Miller telegraphed the company what purports to be a second offer -by Schaeffer for the property, as follows: ‘ ‘ Party offers thirty thousand Denver Block, five thousand cash, one thousand each year for five years, balance in ten years, deferred payments five per cent. Shall I accept 1 Answer. ’ ’ On June 1 the company answered: “You may sell Denver Block for thirty thousand; five thousand cash, balance secured by bond
The plaintiff testified in his own behalf, and, speaking of his first interview with Miller, says that when he made inquiry of Miller, and Miller told him the company would want about $40,000 for the block, he replied: “That is too much”; that Miller then said: “Probably we can get a better price. * * =::i Step in in a few days. I will write to the company and see what I can do.” Speaking of his first offer for the property, the plaintiff says that, “when Miller had received a reply to his letter of inquiry, Miller then said: ‘You make me an offer. They will take $30,000. They want $10,000 down. ’ I said: ‘ I cannot think of paying $10,000 down. I will pay $5,000 cash and $1,000 a year for five years.’ The interest agreed upon was five per cent. That was all very well and good, and he submitted it to the company, and they accepted the terms. The insurance that was on the building was to remain as it was without any additional expense to me. I was also to have possession of the block on June 1. * * * The deal was consummated. I should judge, along about the 1st of June, 1905.” The plaintiff does not refer in his testimony at all to the second offer which Miller made the company, as shown above; but with respect to this first offer he further testified: “When I had this agreement with Miller for the purchase of the Denver Block, part of the agreement was that I was to pay the taxes for that year. All the insurance that was then on the property I was. to have. I was to have the premiums which had been paid by the company. I was to pay $5,000 cash, $1,000 each year for five years, and $20,000 in ten years. The security on these deferred payments was to be a mortgage on the building — on the property, to be executed by myself and wife. That was the understanding.”
Miller was called as a witness for the plaintiff and testified that he wrote the letter of inquiry of May 6 and submitted the offer of May 17 at the request of Schaeffer. He says: “I was doing this thing for Schaeffer, charging him a commission for it.” Taking the evidence offered for the plaintiff as a whole,
That Miller was a special agent for the company in the matter of this attempted sale appears beyond controversy, and that Schaeffer knew this is likewise apparent. He knew that Miller did not have authority generally to sell this property or to fix a price or the terms of sale, for he knew that Miller had to submit every proposition to the company. Furthermore, since they were dealing with real estate, Schaeffer knew, or, what amounts to the same thing, he was presumed to know, that Miller’s authority had to be in writing. There is not any question of ratification involved here. “An agent for a particular act or transaction is called a special agent.” (Revised Codes, see. 5415.) A person dealing with a special agent is bound to ascertain the scope of the agent’s authority, and, if he does not, he deals at his peril. (Moore v. Skyles, 33 Mont. 135, 114 Am. St. Rep. 801, 82 Pac. 799, 3 L. R. A., n. s., 136.) Miller testifies that he showed Schaeffer all of the correspondence passing between himself and the company. Schaeffer says he did not see any of it. He testifies: “[I] didn’t ask Miller to let me see any of the correspondence of the company. I took his word for everything.” To accept Schaeffer’s version does not aid him in the least; for he knew that Miller was acting under delegated authority, and it has become a trite saying that “where one deals with another, acting under delegated authority, it is his own folly if he does not inform himself of the scope of the authority.” (Dozier v. Freeman, 47 Miss. 647.) “There being a written authority, persons dealing with the party holding it are bound to inform themselves of its extent, and inquire into its limitations.” (Rawson v. Curtiss, 19 Ill. 455.) Since Schaeffer was charged with knowledge that Miller’s authority had to be in writing, he was bound to ascertain the terms and conditions of the letters and telegrams which conferred the authority, or deal at his peril if he failed to so inform himself. (Miller v. Wehrman (Neb.), 115 N. W. 1078.)
This action, of course, proceeded upon the theory that the payment of $5,000 to Miller was payment to the company. Section 5441, Revised Codes, provides: “A special agent to sell has authority to receive the price on delivery of the thing sold, but not afterward.” Miller never had authority to deliver possession of the property to the plaintiff. The right of plaintiff to the possession would follow as a matter of course upon the completion of the sale; but the papers necessary to evidence the transaction were to be prepared and the interests of the company conserved, not by Miller, but by Mr. Gunn, the company’s attorney. Whether Miller undertook to give possession of the property to Schaeffer is not made plain from the testimony offered on behalf of the plaintiff. He did, however, receive the $5,000 as part payment, and, assuming that he delivered possession of the property to Schaeffer, it is perfectly manifest that in each instance he exceeded his authority.
It is contended by respondent that Miller had authority to receive the $5,000 for the company, and that he did so receive it. In his brief it is said: “An authority to make a contract for the sale of lands will authorize the agent to receive so much of the proceeds of the money as is to be paid in hand on the sale as an incident of the sale.” This is correct', but such authority does not authorize the agent to receive a part of the purchase price before any contract of sale is entered, into, and neither does it authorize the agent to receive a portion of the purchase price upon a contract which the agent is not authorized to make. From Brown v. Grady, 16 Wyo. 151,
Since there was not any contract entered into, Miller did not have any authority to receive the $5,000, and its receipt by him was not the receipt of that amount of money by the company, and, this being so, it follows that the plaintiff cannot recover any portion of it from the company. There is not any question of ostensible authority involved here. The company did not do anything which would lead Schaeffer to believe that Miller had any authority other than that actually conferred by the letters and telegrams. Neither is there any question of rati
We have disposed of this case upon the evidence offered on behalf of the plaintiff alone. The evidence offered by the company presents the question in quite a different aspect; but, since it does not aid the plaintiff at all, we deem it unnecessary to consider it or the other errors specified in appellant’s brief.
The judgment and order are reversed, and the cause is remanded for a new trial or for other proceedings not inconsistent with the views herein expressed.
Reversed and remanded.