Remington v. Sellers , 8 Kan. App. 806 ( 1899 )

The opinion of the court was delivered by

Schoonover, J.:

This action was commenced by J. K. Sellers against J. B. Remington, before a justice of the peace, to recover $250, for services rendered as agent in the sale of real property. The case was appealed to the district court of Miami county, tried by the court without a jury, and a judgment rendered in favor of the plaintiff below, J. K. Sellers, for the amount claimed. The finding and judgment of the trial court are fully sustained by the evidence.

It is contended, however, that the contract for the sale of the land entered into by J. B. Remington and Samuel R. Stillman, the proposed purchaser, included in the description of the real estate the homestead of Remington, and that the wife of Remington did not sign the contract; that the contract is void, and that, there could be no sale. That a contract made by the husband, without the consent of the wife, to convey the homestead, is void, is settled in this state. (Thimes v. Stumpff, 33 Kan. 53, 5 Pac. 431; Hodges v. Farnham, 49 id. 777, 31 Pac. 606.)

This action is on a separate and independent contract for personal services as agent of J. B. Remington, and when the sale was completed, the agent, Sellers, was entitled to his commission, and the court so found. If Remington had no authority to sell the land, it would not release him from his obligation to his agent. The agent acting in good faith is not responsible for the failure of title. (Lockwood v. Halsey, 41 Kan. 166, 21 Pac. 98.)

The judgment of the district court is affirmed.