33 Ind. App. 586 | Ind. Ct. App. | 1904
The complaint of the appellant Luther Gr. Strong against the appellee Joseph Ross was based upon
It was alleged in the complaint that the appellant had complied with the contract on his part, except as prevented, as thereinafter stated; that the appellee had failed and refused to comply with its terms and conditions on his part; that he had failed and refused to furnish the appellant with an abstract of title to the real estate on or before February 1, 1902, or at any other time, and he still refused to furnish such abstract; that soon after the execution of the contract' the appellee repudiated it, and declared that he would never perform the conditions therein upon his part. On the trial, after the introduction of the evidence, and after the conclusion of the argument of counsel, the appellant was permitted to amend the complaint by inserting the words, “to wit, on March 1, 1902,” after the words, “that soon after the execution of said contract” the appellee “repudiated the same.”
The complaint farther stated, in substance, that the appellant w'as unable to find the appellee on March 1, 1902, for the purpose of making tender and demanding an abstract of title and the execution of the deed; but that on March 3, 1902, the appellant met the appellee, and then offered to pay him all money due on the contract on March 1, 1902, and to execute the note and mortgage, and demanded of him an abstract of title and the deed of conveyance; hut that the appellee then again repudiated the contract, and declared that he would never perform any of the conditions therein on his part, and waived all for
The appellee answered by general denial, and by a second and verified paragraph denying his execution of the written contract in suit, and alleging that he never authorized said W. T. Ross to sign or execute it for him in his name, or as his agent or attorney in fact, or in any mode, and that the appellant never paid the appellee $1,000, or any sum under the alleged contract, and that appellee never received or retained any money from any person upon said contract, and that said W. T. Ross had no authority, written or oral, to sign or in any manner execute said contract for or as agent of the appellee, and that the
The appellant replied to the second, third, and fourth paragraphs of answer in two paragraphs; the first being a general denial. In the second it was averred that the appellee, August 31, 1901, with full knowledge of the contract, and that W. T. Boss, claiming to act as agent of the appellee, had executed it, ratified the contract, and agreed to comply with its terms, and at the time of said ratification had in his possession a copy of the contract, and Was fully acquainted with all the terms and conditions thereof and of all the facts relating thereto.
The cause was tried by the court, the finding and judgment being in favor of the appellee. Upon the trial, the appellant was authorized by the court to remove the money tendered, upon consent of the appellee, which was given in open court.
The appellant has assigned as error the overruling of his motion for a new trial, and has presented for our decision the question as to the sufficiency of the evidence to support the finding. The appellee, at the date of the alleged contract, resided in California, and had .not recently seen W. T. Boss, the appellee’s nephew, who signed the instrument as agent. The evidence consisted largely of letters and postal cards. February 6, 1901, W. T. Boss, wrote from Boswell, Indiana, where he then resided, to the appellee, saying: “I have an inquiry from a land agent at Kentland, Indiana, asking if you were wanting to sell your land in York township. I told him that you did, but could not give him any information as to price. He told me to correspond with you and find out as soon as possible, as he had a buyer. My father has gone to Raub to see Mr. Strong concerning the land. Beal estate is having quite a
February 14, 1901, the appellee wrote from California to W. T. Ross, saying: “I received your letter yesterday, and contents noted. I did not know that you Was in the real estate. You mentioned in your letter of your agent charging $1 per acre. If that is his charge, I don’t want to engage him, as Wadsworth, of Fowler, will take it for fifty cents per acre. If you will take it at that and give me the privilege of selling it myself or other agents that I may wish to give, it to, and if they sell it you don’t get your fee, — I don’t want to pay two fees. If these terms suit him, he may go on; if not, no harm done. I am holding it at $40,000, the one-third down and the balance to suit purchaser, to be secured on the place at six per cent. There is 460 acres in it, all well tilled, and as good land as there is in the county.” On the same day — February 14, 1901 — the appellee wrote from California to the appellant, who was occupying the land as tenant, saying: “I have made up my mind to sell my place, as I want to have all my property near me, so that I can attend to it myself; and as I promised to give you the first chance, if you want to buy, there is another party has wrote me about it, so, to make my word good, I write to you to give you the first chance. I am holding the farm at $40,000, the one-third down, and the balance to suit purchaser, to be secured on the place at six per cent. If those terms suit you, let me know by return mail, as I want to let the other party know. When I left you I intended to see you again, but on account of sickness of my wife I was unable to get back again. We just got back about three weeks ago.” The appellant answered this letter saying that he did not want
May 6, 1901, the appellee wrote from California to his brother James Ross, the father of W. T. Ross — James being the appellee’s agent in Indiana for renting the land —saying: “Your letter and statement came to hand in due time. I was corresponding with a man at Watseka. He was wanting to buy my place. I put the price down to $80, for I had some notion of going into the wholesale of the hay and feed business in Los Angeles, and I wanted to raise $10,000 to put into it. So I thought I would see what I could do with him before I would make any improvements on the place; but he has not come to my terms yet. He made me an offer, but did not quite come to my price, so I think I will wait a while and see if I don’t sell. What wants fixing the most? The house or the cribs ? And let me know what it is going to cost. You can tell Will the price that I have put on the place.”
June 11, 1904, W. T. Ross wrote from Boswell, Indiana, to the appellee, saying: “I have advertised your farm. Have had several inquiries about it. Let me know how you want the payments made, if I should sell it; also if it is incumbered or not, and any other information, so that' I can make an intelligent explanation of all matters pertaining to it.” To this the appellee replied from California, June 25, 1901, saying: “Yours of the 11th is at hand and contents noted. There is an incumbrance of $13,000 on the place,'$6,000 of it is due next February 1st, and the balance due one year from that date, but can run longer if wanted. If the purchaser assumes the debt, I would like to have the one-fourth down; if I have to pay it off, I should like the one-third, and the balance to suit purchaser, at six per cent, per annum payable every six months. That is what I would like to have, but will vary.”
July 23, 1901, W. T. Ross wrote the appellee saying: “I have several offers for the farm, the best of which I
August 8, 1901, W. T. Ross wrote the appellee by postal card, saying: “I sold your farm to Mr. Strong. $36,800. Will send you copy contract in a day or two.” W. T. Eoss also wrote the appellee August 19, 1901, saying: “Enclosed please find contract with Mr. Strong on sale of
August 31, 1901, the appellee wrote to W. T. Ross, saying: “Your letter and contract came to hand, and contents noted. There was something in it that I thought was not right, and I wanted to have my attorney see it, but this is the time of year that people here take their outing at beach, and I have not seen him yet, but expect to see him this incoming week, and if all right will have it signed and sent to you. If not right, I will have one drawn up and sent you.”
October 2, 1901, W. T. Ross wrote two postal cards to the appellee, saying in the first: “Your letter and contract came to hand while I was in Iowa, hence my delay in answering. Mr. Strong will not sign any such contract. He will not pay the mortgage till he gets possession. Also he will not give grain rent indicated by said contract (one-half of grain and hay delivered in Raub). I signed the first contract as your agent, and got more than you asked. You better send the old contract back.” In the second card he said: “After writing you this a. m., I thought I had better explain definitely. You told me in your letter to take $36,500, and get the best contract I could, which I did. Mr. Strong and Dodson Bros., of Kent, would not
There was introduced in evidence also a letter from the appellee to W. T. Ross, dated October 11, 1901, in answer to these two postal cards, in which the appellee stated certain matters which he thought ought to be specified in the contract, and which it did not mention, and asking William, if these proposals were satisfactory, to get a contract made out. Also there were in evidence letters of W. T. Ross to the appellee dated November 10, 1901, and December 2, 1901, from which it appears that the correspondents discussed the subject, carrying on a controversy with each other in relation to the contract, but hot showing acquiescence by the appellee in what had been done. There was also a letter from W. T. Ross of December 4, 1901, to the appellant, in which the writer stated, among many other things: “I sent him the contract you and I entered into, and he refuses to send that back. I will stand by you on our contract, as I have full commission from him to do as I have done.” In answer to this letter the appellant wrote W. T. Ross, making certain proposals as to the manner of performance on his part. These letters, which we do not set out, were most of them quite lengthy, and we can see no sufficient reason for taking space to set them forth, or making, further reference to them. Instead of an agreement between the parties they showed, want of agreement. . '
It appeared in evidence that the alleged contract in suit was signed in duplicate, and that one of the duplicates was sent to the appellee, as above indicated, while the other
Upon the whole evidence, too lengthy to be here set forth, we think it is a reasonable inference that 'the appellant knew at the time of the transaction with W. T. Ross that he was to send the duplicate retained by him to the appellee for complete execution and return; and within a time not unreasonably long, considering the distance between the parties, and the fact that all communication with the appellee, as well as some, at least, of the communication between the appellant and W. T. Ross, was by post, the appellant was apprised of the dissatisfaction of the appellee, shown in part by his letter of August 13, 1901, the date at which ratification was alleged in the reply; and by the failure of the appellee to return the contract
We need not, for the purposes of this case, determine whether or not authority binding upon the owner of land to contract on his behalf for the sale thereof may be conferred by him upon the agent without a formal power of ^attorney, or may be granted by letters sent through the post. And, if such authority may be so conferred by such Writing not under seal, we need not determine whether or not the appellee, by the correspondence between him and the agent, conferred on the latter authority to execute on behalf of the appellee a binding contract of sale, or only authorized him to find a purchaser. For, assuming that authority was granted to make a contract of sale on behalf of the appellee, the differences between the terms of the contract signed by the agent and the terms which appellee offered to accept are numerous, and material and manifest upon a casual comparison of the alleged contract with the correspondence between the appellee and the agent. The agency was special, and the agent could not bind the appellee by terms beyond or differing materially from those authorized.
The agent could not bind the appellee by any act not reasonably necessary for carrying into effect the authority expressly conferred. The appellee had no direct correspondence with the appellant after the latter rejected the offer of the former to sell for $40,000. The appellant negotiated with the agent alone, and had sufficient notice that the authority of the latter was in the correspondence
We can not find from the evidence that the appellee at any time, with full knowledge of all the facts, ratified the contract. He had no information that a duplicate was in possession of. the appellant, or that any paper had been signed except the one sent to him, which he was asked to have signed by his wife, and which he was requested to return. He might reasonably suppose, under the circumstances, with the knowledge of which the appellant must be regarded as chargeable under the evidence, that his retention of the contract would indicate his disapproval thereof. But besides, being apparently desirous of consummating a sale of his land, he, within a reasonable time, commenced and for a considerable period continued to write counter proposals to the agent, whose answers indicated the rejection of such proposals by the appellant. The appellee had reason to believe that the agent and the appellant were in communication with each other concerning the return of the contract, and in relation to the appellee’s objections thereto and his proposals for further negotiations, and under all the circumstances the silence as between him and the appellant personally could not operate as an adoption of the contract. When, according to the testimony of the appellant, in the same month in which the contract was signed or the next month, he wished to obtain a copy of the contract, he did not apply directly to the appellee, but requested the agent to do so, and as a response was informed of the refusal of the appellee. Under the circumstances of the case, the appellant had no reason to expect any communication directly from the appellee.
Judgment affirmed.