Jasper v. Wilson , 14 N.M. 482 ( 1908 )

OPINION OP THE COURT.

PARKER, J.

This is a suit for specific performance of a contract for the sale of real estate. The contract is in the following form:—

“Albuquerque, N. M., Nov. 16, 1904.

“Received from Mrs. W. Y. Jasper, the sum of one hundred dollars as part payment on the west ninety-four and two-thirds (94 2-3) of lots 10, 11 and 12 in Block 44 of the Huning’s Highland Addition to the City of Albuquerque, New Mexico, the purchase price to be eight hundred dollars ($800.00) the balance to be paid on the delivery of a good and sufficient warranty deed and abstract of title.

A. Fleischer,

Agent for Mrs. Mira M. Wilson.”

Fleischer was a real estate broker in the City of Albuquerque and wrote the defendant, Wilson, as follows:—

“October 19th, 1904.

“Mrs. M. M. Wilson,

Salazar, State of Mexico,

Mexico.

Dear Madam: — ■

I have an offer of $700.00 for your lots on the northeast corner of Railroad Avenue and High Street. This is a cash proposition. Kindly let me know at once whether you will be willing to accept that offer. While this is not as much as you had expected to get, I would urge yon strongly to accept the amount in view of the fact that there is a likelihood of cement walks being ordered before long on both sides which would mean an expenditure of about $250.00.

Please let me hear from you without delay and oblige.

Tours respectfully,”

The defendant, Wilson, replied as follows: — •

“Salazar, State of Mex. Oct. 23rd, 1904. Mr. A. Fleischer, Albuq., N. M.

Dear sir: — ’Your favor of the 19th inst. just at hand. I am at a loss what to reply. I could have got $1,000 cash less commission when I was at Albuq., but I asked $1,000 net. And if the little lot brought $500.00, it seems to me the big one should be worth at least $1,000.00. But if it is going to be necessary to put down cement walk at a cost of $250.00, I suppose it would be best to sell before then. The Moore Real Estate Co. had a customer for them and I though there would have been a sale before now.

If the walks are to be ordered and you cannor get more than $700.00, I expect it will be best to accept it. Yet it looks like giving them away. However, do the best you can for me. If you sell, apply the money on the Rosen-wald debt. Send the new interest notes to me for signature and fix all other matters as you think best.

Thanking you in advance for your attention advice, I remain,

Very resp’ly,

Mtra. M. Wilson.”

After receiving the letter of October 23rd, 1904, from the defendant, Wilson, Fleischer negotiated ,a sale of the property in question and executed the contract abov.e set out. On the same day he wrote the defendant, Wilson, as follows:—

“Albuquerque, N. M., Nov. 16th, 1904. Mrs. Mira M. Wilson,

Salazar, Mexico.

Dear Madam:—

x x x x x x I herewith enclose warranty deed for the E. E. Ave. lots, which you will please have properly signed by yourself and husband before a TJ. S. Commissioner of Deeds. You may then return it to me or to the bank with proper instructions. You will have to pay the first half of the 1904 taxes and also furnish an abstract. You will notice that I got $100.00 more for it than T offered you in my last letter. I turned the other party down and tried it again with the above result. My commission will be forty dollars. We will have to apply most of the proceeds on the mortgage, so that I can get a release.

Hoping that this is satisfactory to you and that you will give this matter your prompt attention, I am, with kind regards,

Very respectfully yours,”

To this letter the defendant, Wilson, replied as follows on November 22nd.:—

“Salazar, State of Mexico, Nov. 22nd, 1904. Mr. A. Fleischer, 212 1-2 S. 2nd. St., Albuquerque, N. M. Dear Sir: — •

Your favor of the 16th inst. with enclosure just received. I had just started a letter to you, which explains itself.

Am sorry you are short of money for taxes. Of course take amount from proceeds of sale. Hope, however, you will be able to collect soon and get in better tenants.

I cannot understand why you send this deed for my signature, and so will hold it to hear from you again.

When you sold the other lot the deed and transfer was made by Rosenwalds, who held it by deed of trust, the same as they still hold this one. Had you not overlooked that fact? You remember all I done was to pay for the recording of the satisfaction of mortgage or release. I would go on and sign the deed anyway, but it would cost me $40.00 to do so. Mr. Wilson would have to lay off and lose so much time, which together with our expenses would be no small amount. As I did not sign a deed for the other transfer and as Rosenwald’s do hold deeds of trust for the property, I thought perhaps it would b« unnecessary to do so, and I now await your further instructions. I will attend to it at once if necessayy.

I am sorry you could not realize more on the lots, but hope -all will come out right any way. Apply what you need to on the mortgage. I suppose you can 'apply $700. Pajr taxes 1st 1-2 1904 $31.25, 3>uur commission $40.00, pay for abstract and what little is left deposit to my credit. Have new notes for interest drawn and send to me for signature. And if you will kindly tell me if you think it advisable to put the remaining debt into the building and loan, or leave it as it is?

Trusting that I make you no unnecessary delay by not signing the deed before asking questions,

I remain very respectfully,

Mira M. Wilson."

1. Counsel for defendants earnestly insists that these letters did not authorize the agent, Fleischer, to bind the defendant, Wilson, by a contract to sell her land.

1. • Hnder the view which we take of the scope of the power conferred upon the agent, Fleischer, by the correspondence above quoted, it becomes unnecessary for us to define the exact limits of the power of an ordinary real estate broker. Whether the ordinary power to sell is a power merely to find a purchaser and bring him to the principal, or whether it includes a power to make a binding contract of sale, it is not necessary to decide; but we do hold that the power conferred upon the agent in this case was an enlarged power and a power sufficient to enable him to make a binding contract of sale.

This clearly appears from the circumstances in which the parties were situated, the terms employed in the letters and all the facts surrounding the transaction. The owner was a resident of Mexico, a long distance from the City of Albuquerque; she entrusted the subject matter pf the amount to be paid for the property to the discretion of her agent; she requested him to do the best he could for her, to receive the money and to apply it to the payment of her debts. At the time she conferred the power, she intended to surrender all further dominion over the property and believed that she had clothed the agent with ample power, not only to contract-fox the sale of the property, but even to pass the title to the purchaser. Under such circumstances, the power conferred is an enlarged power and much beyond that ordinarily conferred upon a real estate broker, and is sufficient to authorize the agent to contract for the sale of the land. Lyon v. Pollock, 99 U. S. 668; Rutenberg v. Main, 47 Cal. 213; Smith v. Allen, 86 Mo. 178; Weaver v. Snively, 102 N. W. 77.

We, therefore, hold that the agent in this case was clothed with the power to make a binding contract of sale.

2. Conceding that the agent was clothed with power to make a binding contract upon his principal to convey her title to the plaintiff, still it is urged by counsel for the defendants that; the power did not include the power to contract for a deed with covenants of general warranty and fox an abstract of title.

Proof of custom or usage was relied upon by plaintiff to supplement the power directly conferred and thus sustain the power to contract for general warranty qf title and abstract of title.

2 We have examined the record and must say that the ■proof of custom or usage is very unsatisfactory and whether the same was established is very doubtful. But, assuming that there was no sufficient proof «f custom or usage, or assuming that usage or custom were inadmissible as supplementing the power, still, we believe that the great weight of authority is to the effect that a power to sell and make’a binding contract of sale implies a power of contract for a conveyance with general warranty, 2 Page Cont., sec. 963; Vanada v. Hopkins. 1 J. J. Marsh (Ky.) 285, 19 A. D. 92; Le Roy v. Beard, 8 How. (U. S.) 451; Mechem Agency, sec. 322.

3 But, assuming that the power conferred upon the agent in this case did not include the power to contract for abstract of title and conveyance by deed with general warranty, there is another principle, it seems to us, which is controlling in this case. It is a well recognized principle of equity that a vendee, in an action brought by him for specific performance of a contract, may waive the ■performance on the part of the vendor of portions of his contract and may elect to take a partial performance, if he himseif is willing- to fully perform. This doctrine has been most frequently applied in those cases whore ".he vendor has found himself unable to fully comply as to the amount of lands contracted for, or as to the land being free from encumbrances. We can see no reason, however, why the doctrine should not likewise be applied to a' case like this one where, assuming- the agent has exceeded his power, the vendee elects to take partial performance.

The vendee, plaintiff in this case, has taken a decree of the court below, divesting the title of the vendor and vested it in plaintiff. It is to be assumed that the vendee took this decree -without objection and it must be held in this court to amount to an election or waiver of full performance by the vendor.

The only case we have been able to find, in which this principle has been specifically .applied to a state of facts like those in the case under consideration, is the case of Vanada v. Hopkins, 1 J. J. Marsh (Ky.) 285, above cited; see also Hammond v. Bank; Walker’s Ch. (Mich.), 214.

A similar doctrine is often applied. Thus, a purchaser may elect to take a defective title; or he may -elect to take a part of the land less a homestead; or he may elect to take subject to a mortgage and take decree so as to protect against it. See: 26 A. & E. Ency. Law, 83, sec. 3; Lancaster v. Roberts, 144 Ill. 225; Townsend v. Blanchard, 117 Ia. 36; Hill v. Ressigieu, 17 Barb. Sup. Ct. (N. Y.) 162; Peters v. Delaplaine, 44 N. Y. 368; Bull v. Bell, 4 Wis. 69-75; See Pomeroy Contracts, secs. 438, 439 and note.

4 It is a familiar principle that where a part of the acts are within and a part without the power, the former are valid. Mechem Agcy., secs. 414, 416.

A contrary doctrine was announced in Dellet v. Whitney, Chaves Eq. (S. C.), 213. . *

5 3. -It is urged by counsel for defendants that the defendants, Arthur E. Walker, Raymond H. Lester and Benton S. Jackson, who are the purchasers from the defendant, Wilson, have been guilty of no inequitable conduct against the plaintiff but have simply been diligent and succeeded in getting a conve3rance from the defendant Wilson notwithstanding her contract with the plaintiff in this case. It appears, however, that these defendants were fully advised, before they opened up negotiations with the defendant, Wilson, of the fact that the agent, Fleischer, had contracted with the plaintiff for the purchase of this land. They, therefore, bought with notice of the plaintiff’s rights and cannot complain if those rights are enforced by the court. Pomeroy on Contracts, sec. 465.

It is further urged that the contract is-lacking in mutuality, and therefore, not enforceable.

6 It is unnecessary to go further than to cite the case of Borrel v. Mead, 3 N. M. 39, as decisive of the doctrine that a contract of this kind is enforcable by a decree for specific performance, and this seems to be the settled doctrine of the courts. 2 Warvelle on Vendors. par. 739.

For the reasons stated, the judgment of the lower court is affirmed, and it is so ordered.