2 Colo. App. 141 | Colo. Ct. App. | 1892
delivered the opinion of the court.
Appellee, a nonresident, was the owner of a property on Champa street in the city of Denver. One W: H. Clise was, and for some time had been, her agent to collect rents and attend to the property. From some time in 1887 to April 27th, 1889, appellee and her agent, Clise, had had in
“ Received this twenty-seventh day of April; A. D. 1889, from A. B. Sullivan, of the city of Denver, Arapahoe county, Colorado, the sum of one thousand ($1,000) dollars in part payment for the purchase of lots seven (7) and eight (8), block one hundred and thirty-one (131), East Denver, Arapahoe county, Colorado, which the undersigned agrees to sell and the said A. B. Sullivan agrees to buy on the following terms, viz.: — The total purchase price for said lots is the sum of seventeen thousand ($17,000) dollars, of which one thousand ($1,000) dollars is paid down on signing thereof, and the balance, sixteen thousand ($16,000) dollars, is to to be paid when a good and sufficient warranty deed, properly executed, shall be delivered, title to be perfect and free from incumbrances, and a complete abstract of title, showing good title, to be furnished by the undersigned; the undersigned agrees to show good title and deliver deed as aforesaid within ten days.
“ J. M. M. Leer.
“ By W. H. Clise, Agent.”
On the 3d of May appellee arrived in Denver, and in a day or two refused to make the sale under the contract, refused to receive the $1,000 from Clise, and on tender being made refused to receive the, remaining $16,000, and to convey the property.
This was a suit to compel specific performance.
In every case where suit is brought to enforce the specific performance of a contract, the contract must be clear and established beyond question, and even then the granting or refusing of it rests largely in the discretion of the court. No general rule can be or has been adopted.
It is said in Story’s Eq. Juris., § 742 : — “ The exercise of the whole branch of equity jurisprudence respecting the rescission and specific performance of contracts, is not a
It was formerly universally held that specific performance would not be decreed where the remedy at law was adequate and a party could be compensated in damages. See Fry on Spec. Perform., §§ 10, 12; Dhetegot v. London Assn. Co., 1 Atkyns, 547 ; Rose v. Clarke, 1 Young & Coll. 534; Adair v. Winchester, 7 Gill & J. 114; Bedmond v. Dickerson, 1 Stock. (N. J.) 507; Bonebright v. Pease, 3 Mich. 318.
But in later years courts have departed from the rule as stated, and where land is the subject of the controversy the jurisdiction of a court of chancery to decree specific performance appears to be well established, regardless • of the'adequacy of an action at law. See 3 Pom. Eq. Juris., § 1402, and cases cited.
. But it still rests in the discretion of the court, controlled by fixed rules; one of which is, that the contract must be in its nature and incidents entirely unobjectionable. In this instance there was no abuse of the discretion, and the court was warranted in refusing the decree and relegating the plaintiff to an action at law.
Aside from these considerations, the appointment of Clise, as agent to sell, and his authority to sell and bind appellee to convey, were not satisfactorily established. The court' may have found that no competent agency was created, and in that conclusion this court can agree; and that being a fundamental defect, effectually prevented appellant from obtaining any redress from appellee in equity or at law, regardless of the questions discussed above.
The evidence relied upon by the plaintiff to establish the agency was nearly entirely the letters and telegrams of the respective parties running through two years, most of the letters pertaining to accounts and-other business matters in
This embraces all the evidence which would tend to establish an agency to bind the principal by the written document. Great latitude was allowed appellant in his attempt. Much of the testimony had no relevancy to the transaction. The only evidence that can be considered is first letter of appellee of March 30th. By it no power to sell for $17,000 is given nor is a definite price fixed, — says, “ Think I ought to get $17,000,” — at the same time informs him that she will be in Denver. “ Wish you would have a purchaser.”
In the telegram she says she wont sell for less than $17,000, “ be there May 1st.” This fixes no price, confers no authority to sell, but keeps it in abeyance until her arrival. Why, on the eve of her arrival, it becomes necessary to sell and' close the sale by a written agreement is left to conjecture. No reason or exigency was shown. Elaborate and carefully
We can find no appointment of Clise as an agent to sell, either generally, at his own discretion, or at a fixed price— no authority to make a sale. Taking all the miscellaneous evidence introduced to establish the agency and we can find nothing in the way of an appointment or authorization. To bind the principal in writing or by parol to execute a conveyance, the authority of the agent to make the sale must be established. Such an authority need not be under seal— need not be contained in a single instrument — may be deduced from letters or- telegrams, but it is indispensable that the agency and authority be established and a clear and unequivocal appointment of the agent shown. In this case the agent was not ordered or authorized to make and conclude a sale at.any price or upon any terms, whatever. The power to adopt or reject any proposition was retained by the principal and postponed until her arrival; hence, the authority of a properly constituted agent to execute a writing- of the character shown, is not involved.
The decree refusing a decree for specific performance and dismissing the bill will be affirmed.
Affirmed.