104 Neb. 342 | Neb. | 1920
The plaintiff brought this action to' compel specific performance of an alleged land contract for the sale of land situated in Morrill county. The district court found generally for the defendant and dismissed the plaintiff’s cause of action. The plaintiff brings the case here on appeal.
The petition alleged in substance the corporate capacity of the defendant; that prior to January 15, 1917, the defendant had authorized in writing one Frank N. Hunt to negotiate a sale for the defendant of the S. W. % of section 31,’township 20, range 49, in Morrill county, Nebraska, then owned by the defendant; that the plaintiff entered into negotiations with the defendant’s agent, Frank N. Blunt, which culminated in a contract of sale, and thereupon the plaintiff gave a check to said Hunt for $50 as earnest money and received,from him a receipt ahd contract, as follows: “$50. Bridgeport, Neb. January 15, 1917. Eeceived of Mark Spanogle $50 to apply on the purchase price of the S. W. % of section 31,
The plaintiff alleged his willingness and ability to perform the contract on his part, and the refusal of the defendant to carry out the contract on its part. The defendant denied that said Frank N. Hunt was at the time acting as the agent of the defendant, and alleged that he was acting as the plaintiff’s agent. The answer further alleged “that the facts stated in plaintiff’s petition are not sufficient to constitute a cause of action against this answering defendant.” To sustain the issue of the agency of Hunt, the plaintiff offered in evidence Exhibit 1, which, omitting parts not material to the present inquiry, is as follows: “September 27, 1916. I hereby employ Frank N. Hunt sole and exclusive agent to sell or exchange my farm of 160 acres, situated S. W. %, of section 31, township 20, range 49, county of Morrill. * * * Price $15 per acre, commission to be five (5) per cent. This agreement to run three months from date, and thereafter until fifteen days’ written notice is given of withdrawal from market. I also agree to give warranty deed and abstract showing clear and merchantable title to the above described land, within fifteen days after sale is effected. Owner, Maple Grove Land & Live Stock Co., by W. J. Coad. Agent, Frank N. Hunt.”
The witness Frank N. Hunt, called on behalf of plaintiff, testified that prior to February 1 no notice of the revocation of the contract of agency (Exhibit 1) had ever been received by him, and that certain telegrams in evidence were sent to the defendant, “pursuant to that contract.” The plaintiff testified, with relation to the receipt and contract hereinbefore set out (Exhibit 6): “That is a receipt for $50 for the purchase of the
A contract of an agent in the name of his principal, for the sale of land, is void under the statute of frauds of this state, unless the authority of the agent to make the sale is in writing signed by the principal. O’Shea v. Rice, 49 Neb. 893. This same principle has been recognized by this court in the following cases: Morgan v. Bergen, 3 Neb. 209; Soward v. Moss, 59 Neb. 71; Frahm v. Metcalf, 75 Neb. 241; Ross v. Craven, 84 Neb. 520.
Other questions are considered in the briefs, relating especially to the price at which Hunt was authorized to
The decree of the district court was right, and the judgment is
Affirmed.