Guillaume v. K. S. D. Land Co.

Mr. Justice Moore delivered the opinion of the court. 1. An examination of the transcript shows that the court’s findings in respect to the alleged tender of the remainder of the purchase price of the block and the withdrawal of the certificate of deposit are fully supported by the testimony. Unless by some act of the defendant the plaintiff was relieved from the necessity of tendering the remainder of the purchase price, his failure to permit the certificate of deposit to remain with the clerk of the court, assuming it was sufficient for that purpose, must defeat his right to the relief sought. 2. The testimony deseloses that, prior to the expiration of the three years specified in the agreement, the plaintiff received from one of the directors of the defendant a letter in answer to a request for a settlement of his commissions, as follows: — 404 — "Ogden, IJtah, Jan. 7, 1903. Rev. L. F. Gidllanme, Ontario, Or.: Dear Sir:— You are not entitled to anything, as you did not fulfill your part of the contract. Yours truly, 3L S. & D. CO. We, on the contrary, have a claim on you because of your abrupt departure.” F. J. Kiesel, as defendant’s witness, testified on cross-examination that he wrote this letter, but that on reflection he concluded he ought not to have signed the defendant’s name thereto, saying he was only a director, and not an officer, of the corporation. As the commissions earned by the plaintiff formed a part of the consideration for the purchase of the block of land, a denial of any sum due him on account thereof is tantamount to a refusal to execute to him a deed to the premises at the price specified; and, this being so, the question to be considered is whether or not the defendant was bound by the statements contained in such letter. 3. A corporation is represented by its officers, and a director thereof in his individual right possesses no authority to act for it unless he has been appointed its agent, or his acts and declarations have been ratified by it: Hartford Bank v. Hart, 3 Day (Conn.) 491 (3 Am. Dec. 274). 4. As the directors of a corporation, when duly assembled, may constitute one of their number an agent of the artificial being to transact a particular part of the business in which it is engaged, so, too, they can ratify any act of one of their number that they could have authorized in the first instance: Merrick v. Reynolds Engine & G. Co., 101 Mass. 381; Lyndon Mill Co. v. Lyndon Literary & B. Inst., 63 Vt. 581 (22 Atl. 575, 25 Am. St. Rep. 783). The transcript does not show that Kiesel was appointed the defendant’s agent, nor does it appear that any testimony was produced directly proving that the declarations contained in his letter were ratified. The defendant evidently derived a benefit by the sales of its land which the plaintiff negotiated, and it was liable to him for the com — 405 — missions which he thereby earned. The corporation had knowledge of the plaintiffs demands when a copy of the complaint was served, and thereafter retaining the commissions and setting up the defense interposed were equivalent to, a ratification of Xisel’s declaration, as much so as if it had given the notice that it did not owe the plaintiff anything. The rules of law do not require the performance of vain things, and as the defendant would not have accepted the remainder of the purchase price of the block as a consideration for the execution of the deed, the plaintiff was not obliged to make a tender thereof as a condition precedent to his right to a decree for specific performance: Pomeroy, Contracts, § 326; Waterman, Spec. Perf. § 446. 5. The cause having been tried before a referee, testimony was introduced, over objection, and exception, to the effect that the plaintiff was required to sell all the defendant’s land, about 1,200 acres, before he was entitled to a deed to block No. 16. An examination of the parts of the agreement hereinbefore set out will show that no ambiguity exists therein in relation to this question, and that the omission of the word “all” preceding the phrase “such of our lands as we place at your disposal,” shows that the contract is not susceptible to the construction sought to be placed upon it. The defendant’s written proposal, when accepted by the plaintiff, gave him 12 months in which to secure purchasers for such lands for which he was to receive 10 per cent of the sums so secured, but he was to have three years in which to pay the remainder of the purchase price of the block selected. There was no ambiguity in the contract in respect to the consideration which the plaintiff was to pay for the block specified, nor any stipulation that he would secure purchasers for all the land that the defendant desired to sell, and any testimony to the contrary was inadmissible as tending to vary the terms of the written agreement. 6. What has been said in relation to the plaintiff’s obligation to obtain purchasers for the defendant’s land will apply to the averment in the answer that he did not try to sell all such — 406 — real property. Reading the contract in connection with the admissions of the answer, it will be seen that block No. 16 of the defendant’s land in Arcadia, as designated on a map on file in its office at that place, and recognized by it as the official and true map of its holdings, is situated in township 19 south, range 47 east of the Willamette Meridian in Malheur County, Oregon, and, by the survey thereof, contains 40 acres. These facts having been admitted by the pleadings, very little testimony was offered in relation to the identity of the land specified. The plaintiff as a witness in Ms own behalf, however, stated that possession of the block was given to him, and that he thereafter leased the premises to the manager of the defendant corporation. The rule is quite general that if the description clause of real property as stated in a written instrument is vague, the construction of the language used that has been placed upon it by the parties may be shown by parol evidence as tending to identify the premises intended: Lanman v. Crooker, 97 Ind. 163 (49 Am. Rep. 437); Truett v. Adams, 66 Cal. 218 (5 Pac. 96); Lovejoy v. Lovett, 124 Mass. 270. Thus, when possession of real property is taken pursuant to an agreement of the vendor, the occupation of the premises by the vendee may render certain what otherwise would have, been a vague description of the land intended by the parties: Richards v. Snider, 11 Or. 197 (3 Pac. 177); Simpson v. Blaisdell, 85 Me. 199 (27 Atl. 101, 35 Am. St. Rep. 348); Ray v. Pease, 95 Ga. 153 (22 S. E. 190). It is admitted by the defendant’s counsel that when a map delineating a survey of real property is referred to in a deed, such plat is to be considered as a part of the instrument, and to be construed in connection therewith; but it is contended that the reference must be to a public chart, and as the allusion in the ease at bar is to a private map in the office of the defendant corporation, the rule adverted to is not applicable. In Noonan v. Lee, 67 U. S. (2 Black) 499 (17 L. Ed. 278), reference was made in a deed to a plat that was so defective as not entitled to be recorded. In deciding the ease, Mr. Justice — 407 — Swayne says: “The proof in the case shows clearly where the plat was in fact located. As regards the statute, the plat was fatally defective, and afforded no warrant to the recording officer for putting it on record. Nevertheless, its being there was a fact, and whether there or elsewhere, the reference to it in a deed for the purpose of fixing a boundary is sufficient.” In Young v. Cosgrove, 83 Iowa 632 (49 N. W. 1040), in referring to an invalid map alluded to in a deed, the court says: “The holder of the title to the land recognized the plat by following its descriptions, and thus, as between himself and his grantee, adopted it. Surely, when an instrument is referred to to designate land, or give description thereof, we are not required to hold such an instrument valid and regular in order to accept the description it gives. A void deed or a void plat could well describe lands which could be properly and conveniently referred to for such description in deeds conveying them.” In Johnstone v. Scott, 11 Mich. 232, it was held that deeds of town lots were valid, notwithstanding the failure of the proprietors to acknowledge and record the town plat. In deciding that case, Mr. Justice Christiancy says: “None of our statutes in reference to town plats go so far as to render deeds of conveyance between individuals void, because made by reference to an unacknowledged or unrecorded plat. But any such plat, or any other map or plat, whether to be found in a public office or in the possession of any person, may still be used for the purpose of identifying the land intended to be conveyed, though no description be given except by reference to such plat by which the property conveyed could be ascertained.” We think there can be no doubt that the reference to the defendant’s official map on file in its office at Arcadia, and proof of the identity of the land, the possession of which was delivered to the plaintiff, afford sufficient data to enable a competent surveyor to locate block No. 16 as it was surveyed on the ground, and this being so, the decree is reversed^ and one will be entered here as prayed for in the complaint, provided that the plaintiff deposit with the clerk of the lower court, within 30 days from the entry of the mandate therein, the' sum — 408 — of $1,214, the remainder of the purchase price due the defendant. Decided 29 January, 1907. 7. The plaintiff will recover his costs and disbursements in both courts. Reversed.