Graham v. W. W. Dickinson Hardware Co. , 69 Ark. 119 ( 1901 )

Riddick, J.,

(after stating the facts). The sale of the land in this case, being made by an agent of the commissioner, and not by the commissioner in person, was in that respect irregular, but it was confirmed by the court, and its validity is not questioned in this proceeding.' The contention here is that the purchase money ■was not paid, but it is not denied that it was paid to the agent of the commissioner who conducted the sale, and he in turn paid it to the commissioner. The commissioner reported to the court that the land had been sold and the purchase price paid as well, and on this theory the sale was confirmed. It is said, though, that Stayton directed the commissioner to withhold the money from the plaintiff company unless it would execute a deed, and that the company rightfully declined to accept the money on such condition, and that the payment was therefore not binding on the company. But this sale was not made by the company, but by a commissioner of the court. The purchasers did not undertake to pay the Hardware Company. They undertook to pay to the commissioner, and were absolved by a payment to him and a confirmation by the court. It may be conceded that, if the purchasers had directed the commissioner to withhold the money from' the company until it made a deed, -and if this act of theirs had' resulted in the loss of the money, they would have been responsible. The'chancellor probably 'based his decree on a finding that Stayton was acting for the purchasers in making his request that the commissioner withhold the money; but, while Stayton in so doing no doubt intended to favor the purchasers, there is nothing to show that he was authorized by the purchasers to take such a step and make such a request, or that they had any notice of his acts in this regard until long after the death of Streett and the loss of the money. The only persons who testified on this point were Stayton agd Graham; and both of them testify positively that the money was paid by the Grahams '"immediately, and that they imposed no conditions whatever upon the commissioner, nor authorized Stayton to impose any. Stayton testified that when the purchasers, after the money had been paid, inquired if the land could be redeemed, the idea occurred to him that a warranty deed from the Hardware Company would prevent redemption, and that he then, of his own motion, and without any demand or even suggestion from the purchasers, gratuitously told them that the company would make such a deed, he thinking that the company could have no objection. Afterwards, feeling probably under some moral obligation to make good his promise, but without being in any way authorized by the purchasers, and without informing them of his acts, he undertook to procure such a deed.

While some of the statements in the letters of Stayton to Streett, which were read in evidence, might, in the absence of any explanation, raise, as against him, the inference that he was in this matter acting for the Grahams, still these letters are not evidence against the Grahams. The letters may contradict Stayton, but they do not affect the Grahams, when all the evidence shows that they had given Stayton no authority to act for them. Stayton in his testimony gives what would appear to be a frank explanation of these letters, and of his motives in writing them, but we need not notice it; for, if his conduct in that regard resulted in loss to the Hardware Company, it furnishes no reason for imposing the loss on the Grahams, he having, as before stated, no authority to act as their agent, and, if we take his testimony, no intention of doing so. The Hardware Company, is undoubtedly out money which it should have, but we are of the opinion that the evidence does not justify a recovery from the Grahams. For this reason, the judgment' is reversed, and the case dismissed.