Dayton v. Buford

By the Court. Ripley, Ch. J. The main error, in the plaintiff’s view of the case, which led the referee to his conclusion that Cooley was not authorized to sell the lands upon the [129] terms upon which, he bargained them to the plaintiff, is in holding that the authority of Cooley, whatever it may have been prior to the letter of defendant of June 29th, 1868, was fixed and limited by that letter when it was received by Cooley, prior to the bargain with the plaintiff. He contends that the letter did-not limit the agent’s powers, for the reason that it was a confidential communication, intended to be kept secret, and not to be communicated to persons desiring to purchase. Whether that was the intention or not, is a question of fact. The plaintiff is therefore in error in supposing that the nature, effect, and true interpretation of the correspondence between Cooley and defendant is not a question of fact for a jury or referee, but of law for the court. If, however, it is a question of fact, the plaintiff further suggests that the finding of the referee on the point is based wholly and exclusively upon the correspondence. We are unable to see why the referee may not be supposed,, like the plaintiff, to'have construed the correspondence with reference to the actual state of things, and the existing relations of the parties. Supposing, nevertheless, that the plaintiff is right in his assumption, the general rule, that where there is any competent evidence reasonably tending to sustain the finding of a referee upon a question of fact, the finding will not be disturbed in this court, unless the finding is most manifestly and palpably against the weight of evidence, is not affected by the fact that all the evidence introduced before the referee was written or printed. Havens vs. Humphrey, 12 Minn. 298. Upon these principles the finding is not to be disturbed. It may be admitted that by best cash price, the agent inquires for the lowest price at which defendant will sell for cash. Plaintiff’s argument, however, is here built up upon an incorrect quotation of the whole sentence. “Send me your best price, [130] either cash, or part cash and part time,” is by no means synonymous with, “ send me your lest' cash price; also price, part cash, part time.” Whatever the force, however, of the italicised words, the agent goes on to inform the defendant that the land is difficult of sale; that it will not sell for more than three dollars to three dollars and a half per acre, and he is not certain that it will bring so much. That is the plain effect of the expression, that “ yours might be sold for f 3 or f 3.50, perhaps, an acre.” The defendant’s answer must certainly be taken to have been made with reference to this statement. “ As such is the case,” he says,.in effect, “If you can sell the whole of the land to prompt and responsible parties, I will take $3 an acre cash, or half down and the balance in one and two parts,” &c. We see no reason for supposing that he intended, or why the agent should have supposed that he intended that this instruction was to be kept secret. The motive for concealment is stated by the plaintiff to be the fací that disclosure would defeat airy attempt to obtain a higher price than three dollars an acre. But if the defendant had no reasonable ground fou expecting that the land could be sold in a body for more than three dollars an acre, what becomes of the motive ? The plaintiff’s inference, as to the character of this correspondence, is partly based upon his construction of the 2d finding of fact. Cooley, he says, when he wrote his letter, “ was, as the referee had expressly found, the agent of defendant in respect to the sale of these lands, with general plenary and unrestrained power and authority for that purpose.” There is no such express finding, however. The referee pointedly avoids a finding as to the extent of Cooley’s authority. But whatever the fair inference may be from the facts found, if considered by themselves, there is evidence which tends to show that the agent did not conceive himself [131] to have had this plenary and unrestricted power, and that the letter was written under no such impression. Cooley says, for instance, that “ we tried to sell the lands at different times, but never set any price ” till he got the defendant’s letter, aforesaid. Why not, if his power was plenary 1 So, his letter states that “ several parties have been looking at your land in Hayfield inquiring price, terms,” &c. Upon such inquiries, instead of fixing price and terms, in pursuance of his supposed plenary power, he makes the request already quoted, whereby the defendant is asked to fix a price, not only in cash, but partly in cash and partly on time, necessarily including, however, a request for a statement of the terms as to deferred payments. It is certainly a fair inference from all this, that one object, at least, of the letter, was to enable the agent to give an answer to such inquiring parties, a power which the agent did not then conceive himself to have. The letter thus looked at is seen to be inconsistent with the plaintiff’s theory. Suppose, for instance, that this plaintiff had been one of such inquiring parties; what sensible reason could the agent have given for not fixing a price, if it were not that he must first ask his principal ? When the principal fixed a price, would not the agent tell plaintiff what it was ? Would not the plaintiff expect him to do so, and to tell the truth % What else could the defendant possibly expect ? Taking the referee’s finding as conclusive, it is not enough, as he says, that the bargain actually made appears upon the whole to be more favorable for the defendant than the bargain which he authorized. But the plaintiff takes exception to the referee’s statement, that the terms of the bargain made differ materially from those. authorized, in that, for instance, half of the purchase money was to remain on mortgage two years, instead of being divided, and one moiety thereof made payable in one year. ' The de [132] parture, lie says, was of a character which the parties could not have regarded as material. There is no evidence in the case from which we can form any opinion as to how the defendant would have regarded it. Certainly the variation, in itself considered, is material. It cannot be said, as the plaintiff suggests, that the only difference was in favor of defendant, by securing'better terms, and additional benefits. With respect to the defendant’s direction to Ellis, to inform persons who might examine the land, that Cooley was his agent to sell the land, we agree with the referee, that this was not such a representation as would naturally mislead a person of ordinary prudence, and that when the subject of the power is the sale of real estate, no one would be justified by such a representation, in assuming that the power of the agent was untrammelled, or excuse him from ascertaining the actual authority conferred upon him. Judgment appealed from affirmed.