Holbrook v. McCarthy

McKee, J.: This was an action to compel specific performance of an agreement to convey certain real estate. The agreement was made by an agent of the defendant acting under the following authority: “ San Francisco, 6th Oct., 1879. “ I authorize Thomas Magee, exclusively, to sell the following property for me, for $72,175, in gold coin, for 30 days from date; lot south-east side of Market street, 91 8-12 feet; north-east of north-east line of Fremont street; thence northeast along south-east side of Market street 91 8-12 feet front, by uniform depth south-east of 137.6, together with right of [219] way over alley leading from Fremont street to rear of said land. I will pay 2|. per cent, commission if a sale is made, and nothing if a sale is not made. “Harriet McCarthy.” On the day of the date of this memorandum plaintiff proposed to the agent to buy the property for seventy-two thousand dollars, if the defendant would pay the taxes upon it for the year 1879-80, and give thirty days for the examination of title. The agent accepted the proposal, received from the plaintiff five hundred dollars, on deposit, as security that the plaintiff would complete the sale, and executed and delivered to the plaintiff a memorandum in writing of the terms of the agreement. The. memorandum was signed in the name of the defendant by the agent; and it contained a stipulation to the effect that if the plaintiff upon examination of the abstract of title, was satisfied with the title and did not close the sale within the time agreed upon, the deposit would be forfeited, and, if found to be defective, the money would be returned. Hpon examination the title to the property was discovered to be defective. There was an outstanding reversionary interest to part of the property which defendant had not acquired, the value of which the plaintiff estimated at three thousand dollars; and the defendant had no right or title to the alley-way, connected with the property, which the plaintiff alleges was worth five thousand dollars. The entire property was also incumbered by a mortgage for ten thousand dollars; several actions pending against it in the Superior Courts of the city and county of San Francisco; • tax certificates for the sale of delinquent taxes, and existing assessment liens. On account of these defects and incumbrances he asks an abatement from the original purchase price and for a specific performance of the agreement. Mostly all the allegations of the complaint are specifically denied by the answer, and the defendant by way of confession and avoidance shows that she obtained the property in dispute by a degree of divorce from her husband; that she is wholly unacquainted with business transactions,- and, by mistake authorized a sale of the alley-way; that the compensation [220] for the alleged contract was inadequate; that the contract itself is unfair, unjust and inequitable; and that the agent in making it did not pursue the authority conferred upon him. Upon the trial of the issues findings of fact were waived. The Court “on the whole case” found for the defendant; dismissed the plaintiff’s complaint, and gave judgment for defendant. The general verdict covered all the issues, and, being founded upon conflicting evidence as to almost all the issues, it can not be disturbed. Besides, the documentary evidence of the transaction shows that the agent did not act within the scope of his authority. He was authorized to sell for seventy-two thousand one hundred and seventy-five dollars, hut he sold for seventy-two thousand dollars and hound his principal to pay out of that the taxes upon the property for the year 1879-80, amounting to one thousand one hundred and fifty-two dollars and thirty-five cents. • Such a sale was unauthorized. It is true that the property was hound for the taxes imposed upon it, but their payment was a duty of the owner with which the agent had nothing to do. The property itself he was employed to sell for a specific sum; he was not employed to pay taxes upon it, nor to contract for their payment, and any agreement to sell for a sum less than that nominated in his authority, and to pay taxes, was of no binding force upon his principal, unless she, with a perfect knowledge of the material facts in connection with the transaction, consented to it and ratified it. But the Court found there was no ratification, and the finding is fully sustained by the evidence: the agreement by the agent was, therefore, not valid and binding upon the defendant. “If a man,” says Lord Coke, “do less than the command or authority committed to him then (the commandment or authority not being pursued) the act is void.” (Bac. Abr., 523.) Judgment and order affirmed. McKinstry, J., and Morrison, C. J., concurred.