Taylor v. Burns

Nov 12, 1906

Reporters:: , , ,
Before:: Brewer

Mr. Justice Brewer,

аfter making the foregoing stater ment, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍delivered the opinion- of the court.

This casе turns upon the -scope and effect of the agreement of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍March 26, 1901. It is claimеd by plaintiff that it is a con veyance, passing title; by defendants, - that it is simply a power of attorney, subject to revocation. Its meaning is to be determined by a considerаtion of all its terms and not by any particular phrase. The first paragraph .recitеs a consideration, and states that for the consideration the first party “sells” the claims to the party of. the second part. -If this were all it would suggest a purpose tо pass title, but the paragraph closes with a reference to further stipulatiоns, its language being “sells ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to the said party of the second part the said mining claims upоn the terms and consideration following, to wit.” The next paragraph authorizes the рarty of the second part to “sell and .negotiate”-the mines for any sum above $45,000, and to retain out of this purchase price seven-eighths of the excess of $45,000, while in the last paragraph the party of the first part “agrees to execute any deed or deeds or conveyances that may be hereafter necessary tо convey a good title to said mining claims.”’

Nowhere in the instrument does the party of thе -second part assume any obligations, except the general one in the third рaragraph, by which both parties mutually agree to aid each other in the negоtiation and sale of the mining-claims. The instrument does not in terms grant or convey. The neаrest approach to a word of conveyance is “sells.” This is more apt in describing the passing of the.title,of personal than of real property. Not that this is decisive, for not infrequently it is held to manifest an intent to convey the title to-the property named, whether ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍real-or personal. But when the purpose of the transaсtion is-stated the word will ordinarily have ho more effect, upon the title than is necеssary to accomplish the purpose. The purpose here named was thе giving of authority to make a sale to some third party at not less than a named price; which price would belong to Burns, less- the commission on the sale. For this it was not necessary to pass title with the authority. ’ And it is not -ordinarily to be expected that an owner will part .with title before receipt of purchase price, or. security therefor. Appellant contends that by this instrument he became owner, while Burns was only an equitаble mortgagee. But no time is fixed for the sale, and therefore no time for the maturity оf the supposed debt, nor is any liability cast upon Taylor for the payment of any рortion thereof. Indeed, its amount is uncertain, whether $45,000, or $45,000 plus one-eighth of a price which should or could be realized on a sale. If it were true that title passed then Taylor could immediately convey to a third party, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍who, by payment of $45,000, would acquire the property. We need not inquire whether there was a breach of contract for which Taylor could recover damages. The question here is the effect of the contract upon the title. While it may be conceded that the meaning and scope - of the instrument are not perfectly clear, yet it seems more rеasonable to hold that it was simply a grant of authority to Taylor to “sell and negotiаte” the mines, and not also a transfer to him of the title to the property.

As such an instrument it was subject to revocation. It was not a power of attorney couplеd with an interest. “By the phrase ’ coupled, with an interest,’ is not meant an interest in the exеrcise of the power, but an interest in the property on which the power is to оperate.” Hunt v. Rousmanier’s Administrators, 8 Wheat. 174. Now as we construe this contract, Taylor was to receive, in case he made a sale, seven-eighths of the price in excess of $45,000 — thаt is, he was to be paid for making the sale. It was an interest in the exercise of the рower and not an interest in the property upon which the power was to oрerate.

We see no error in the ruling of the Supreme Court of the Territory of Arizona, and its judgment is

Affirmed.