Bromley v. Aday , 70 Ark. 351 ( 1902 )

Wood, J.,

(after stating the facts.) The burden of proof was upon appellees. The proof utterly fails to show that the relation of landlord and tenant existed between appellants and. appellees. It is not even shown that Joblin had any authority to make a sale of the premises in controversy, much less Barr, who, in this so-called agreement of sale, acted only as the agent of Joblin. He was not the agent of Hill, Fontaine & Company to sell lands. Joblin assumed to have authority to sell lands for Hill, Fontaine & Company, and the court seems to have treated this assumption of authority on his part as the real thing itself, and demanded no further proof. The court evidently found that Joblin had authority to act for Hill, Fontaine & Company, and that Barr had authority to act for Joblin, and that what Barr did for Joblin in the transaction was done for Hill, Fontaine & Company. This was all wrong. Even if Joblin himself, without a power of attorney, could have made a verbal contract with appellees for the sale of the lands, and upon payment of part of the purchase money could have put appellees in possession, he did not do it. Therefore we are not called upon to decide whether he could have done so or not. We are sure that Barr, who derived whatever authority he had in the premises from Joblin, could make no contract that would bind Hill, Fontaine & Company. That is getting too far away from the source of power. Delegatus non potest delegare would apply to Joblin and Barr. If Joblin had authority as agent to sell, he must have been regarded by his principal as having special fitness for such important responsibilities. This he could not delegate. Meehem, Agency, § 186.

Of course, Ilill, Fontaine & Company might have ratified any contract of sale that Joblin or Barr either might have made with appellees. But there is no proof here that Hill, Fontaine & Company did so. The evidence falls far short of showing ratification, or anything like it, before the institution of this suit. No deed was signed or delivered. Barr tendered back the cash he had received. Appellees refused it, showing that they wanted to make the deal go. Under such circumstances, a retention of the notes by Hill, Fontaine & Company would not be construed as a ratification of the unauthorized act of Barr. But, even if Barr had been clothed with authority to make the sale, he did not make it. There was no such delivery of possession upon payment of a part of the purchase money as to take the case out of the statute of frauds. There was no actual' delivery of seizin to appellees. Appellants never attorned to them or promised to do so. The best the proof shows on this point is that they did not object to doing so. This is far from the affirmative act of paying rent to appellees and thereby recognizing them as landlords or owners.

Moreover, the notice to appellants as tenants by the year was not sufficient. Ten days" notice to quit, given to merchants who had been occupying the premises for years under a lease from year to year, would hardly be considered reasonable. Stewart v. Murrell, 65 Ark. 471.

Reversed and remanded for a new trial.