Edwards v. Tyler

Mr. Justice Craig delivered the opinion of the Court: Joseph K. Tyler, of Emporia, Kansas, was the owner of the property in question. E. A. Cummings & Co., real estate agents of Chicago, were agents of Tyler for the collection of rents. On the 10th day of July, 1890, appellant, Edwards, entered into an arrangement with E. A. Cummings & Co., under which he claims to be a purchaser of the property. Edwards paid $500, and Cummings & Co. made out certain papers, which read as follows: “No. 4501.—Deposited July 10, 1890, the sum of $500. This deposit to apply on contract, when made, for lot....., property known as 1421 Wabash avenue, block....., price to be $20,000; terms, $10,000 cash, and balance one, two and three years, subject to approval of owner, interest six per cent, subject to taxes and assessments after 1889. “The above memorandum for purchase is correct. “Name, Bjoern Edwards. “Address, 108 and 110 East Randolph. “Approved: ................ Owner.” “Chicago, July 10, 1890. “E. A. Cummings & Co.: “Received of Bjoern Edwards $500, to be accounted for by us. E. A. Cummings & Co., A. D. Pitcher.” Tyler, the owner of the property, denied that Cummings & Co. had authority to sell, and therefore refused to convey upon request to do so by Edwards. The question therefore presented at the outset is, whether Cummings & Co. had authority to sell the property. It is not claimed that Joseph K. Tyler ever executed a power of attorney, or, indeed, any paper authorizing Cummings to sell the property, but the position of counsel for appellant, as we understand the argument, is, that certain letters and telegram prepared by E. J. Tyler, the wife of defendant, and sent to Cummings & Co. with the knowledge and consent of defendant, must be regarded as the act of defendant himself, and hence competent written authority to sell the property. It appears that the property was encumbered for $7500, which would become due July 10, 1890. On April 2, 1890, Mrs. Tyler wrote as follows: “The loan of $7500 I have on the property expires July 10. I want, if possible, to sell before I have to renew it. What, in view of the World’s Fair and general boom, do you think it can be sold for between now and July, and would you advise me to sell or renew the loan?” Again, on April 26, 1890, she writes, “I am anxious to sell; ” and on June 9, 1890 : “If the place could be sold for $20,000 before that time (July 10) I would be rejoiced.” On June 13, 1890, she writes, “Sell, if possible.” The following telegram, dated Emporia, Kan., was received July 9, 1890: “To E. A. Cummings & Co., cor. LaSalle & Madison sis., Chic.: “Twenty thousand dollars is the lowest amt. that will-buy it. J. K. Tyler.” On the 10th of July, 1890, E. A. Cummings & Co. wrote to Tyler, and also telegraphed to him: “We have sold [subject] to your approval, 1421 Wabash avenue, for $20,000; terms, $10,000, and balance one, two and three years.” Receiving no reply, on-the 15th of July, 1890, they wrote to Mrs. Tyler that “in accordance with your telegram of the 9th inst. we sold 1421 Wabash avenue for $20,000, and so advised you. Please let us hear from you at once in regard to same.” To this they received no reply, and on the 21st of July, 1890, Tyler and wife conveyed the' property to C. H. Hood, for the consideration expressed of $21,000. It appears that Tyler was a man in poor health, and his-wife attended to his correspondence and was looking after the rent of his property, but the letters she wrote Cummings & Co. were not submitted to him, and he had no knowledge of their contents. As to the telegram, he knew that his wife intended to send a message, but what it contained he did not know, as it was prepared at the office of Mr. Hood, and was never submitted to him, nor was he informed of its contents. If the letters written by Mrs. Tyler, and the telegram, had been submitted to Tyler before they were transmitted to Cummings & Co., and received his approval, it may be he would be bound by the statements contained in those papers, on the ground that they were his acts, and not the acts of the wife; but we are aware of no principle upon which it could be held that he was concluded by what his wife might write or telegraph, when he had no knowledge whatever of the contents of the communications she transmitted to these parties. What she said and did were the mere acts and declarations of a third party, which could not be binding upon him. On the other hand, if the wife acted as the agent of Tyler in her communications with Cummings & Co., she was contracting with them for the sale of an interest in land, and the authority to make any contract, as agent for Tyler, should have been in writing. There is no evidence whatever in the record tending to prove that Tyler gave his wife any authority in writing to sell or dispose of the premises, or to authorize Cummings & Co., or any other party, to sell the property. The Statute of Frauds set up in the answer was therefore a complete defense to the case made by the bill. Indeed, the memorandum of sale which Cummings & Co. gave to appellant shows upon its face that they did not regard their authority to sell the premises sufficient, otherwise the memorandum would not have contained the clause, “subject to approval of owner.” This view is also confirmed by the letter of Cummings & Co. of July 10, addressed to Tyler, in which they say, “we have sold subject to your approval.” If Cummings & Co. had been fully authorized to sell, they no doubt would have made an absolute and unconditional sale, and then notified Tyler to furnish a deed. We perceive no ground upon which appellant could maintain his bill. The judgment of the circuit court will be affirmed. Judgment affirmed.