95 Neb. 228 | Neb. | 1914
- The petition in this case alleges that the defendant, through his agent, contracted to sell to the plaintiff a tract of land in Antelope county for $16,000, one-third cash, and the balance on five years’ time; that plaintiff' paid the required cash, and defendant refused to complete the sale and execute and deliver the deed as agreed, and asked for damages in the sum of $1,800 and interest. The trial
It is contended that the agent had no authority to make the contract. The petition alleges that Dan S. Sheets was authorized to sell the land for the defendant; that Sheets lived near the land, and the defendant lived at Pickrell, Nebraska; and that the defendant caused to be published in a newspaper in Antelope county' a notice as follows : “Farm for sale. For a short time I will offer my farm, situated one mile west of Elgin, for sale. For terms and price address me at Pickrell, Neb., or call on Dan Sheets. John Gerdis.” It also alleged that this farm is situated about one mile west of Elgin in said county, and that afterwards the defendant wrote a letter to Mr. Sheets, in which he stated that he would sell his farm near Mr. Sheets “for $100 one hundred dollars per acre cash or on time to suit on time I want about 1-3 one third down balance to run 5 years or less to suit purchaser drawing 51-2 five and one half per cent, interest from date of sale subject to lease party that buys will get all the grain rent but I keep thé fifty dollars paid for pasture * * * should you sell you get an abstract made out in Neligh if the party demands * * * if you sell the farm for me at 100 doll per acre you get fifty doll if you can get more I give you 5 cents on the dollar for what you get above one hundred per acre.” This letter was signed by the defendant. The contention is that “mere authority to a real estate agent to sell real estate does not carry with it the implied power to make a contract for sale. And the use of the words fio sell,’ as, CI hereby authorize you to sell same,’ does not authorize the broker to make a binding contract of sale, but merely to find a purchaser.” Jones v. Howard, 234 Ill. 404, and Bacon v. Davis, 9 Cal. App. 83, 88, are relied upon by the defendant.
It is alleged in the petition that Mr. Sheets' entered into a written memorandum of sale with the plaintiff in the name of the defendant by Mr. Sheets as agent. This mem
The defendant cites some of the former decisions of this court in the brief, and criticises them quite severely. He says: “The technical meaning of the expression ‘to sell’ was not discussed,” and that many “apparent differences on the subject exist.” There are no doubt many differences of expression in the cases cited, and this naturally follows from the differences of expression in the contracts that were being construed. These contracts, whereby a principal is alleged to have authorized his agent to make a sale of the principal’s property for him and in his place, are to be construed like other contracts; the object being to ascertain the real intention and meaning of the parties,^ Such contracts are often made by correspondence, and not with the greatest possible care, and it is sometimes quite difficult to ascertain what was the real -intention of the parties. The whole writing is to be taken together, and in the light of the existing circumstances and conditions the meaning is to be ascertained. The use of the words “sale,” “sell,” and “to sell” is not always decisive of the meaning of the whole contract. The direct and apparently unequivocal expression, “you are hereby authorized to sell my property,” has, been held, in the light of the other provisions of the writing, to amount to no more than to authorize the agent to find a purchaser and assist the owner in selling his property. Armstrong v. Lowe, 76 Cal. 616.
In Bacon v. Davis, 9 Cal. App. 83, there is an extensive and quite exhaustive discussion of the matter. It was held that the agent was authorized by a written contract to make a sale of the property in the name of his principal. The court state many of the common and accepted
In this case the owner of the land first published the notice informing the public that his land was for sale, and advised those who desired to purchase to negotiate' with himself or with Mr. Sheets. Afterwards he wrote Mr. Sheets telling him that he desired to sell the land, and stated with precision his price and terms, giving all of
The judgment of the district court is reversed and the cause remanded.
Eeversed.