Kelly v. Brennan

55 N.J. Eq. 423

• Court: New Jersey Court of Chancery
• Decided: February 15, 1897
• Status: Published

Opinion

Grey, Y. C.

There are two questions of fact in this case on which the several parties are at variance, the settlement of which will determine their rights. The complainant asserts that she became the equitable purchaser of the lot in question, by a memorandum of sale obtained from Mr. Giltinan, the authorized agent of the defendant Mrs. Brennan. She also alleges that the defendant Crosby 'knew she had obtained this contract, and, in order to cheat her of her bargain, afterwards entered into a subsequent contract with Mrs. Brennan herself. The complainant prays that the specific performance of her contract obtained through the agent may be decreed.

As to the first point, the dispute turns upon the assertion on the part of the complainant of Mr. Giltinan’s authority to bind Mrs. Brennan by a contract of sale, and a denial by the defendant Mrs. Brennan that he had any such power. The original employment of Mr. Giltinan was in writing, and made him Mrs. Brennan’s agent to sell the property, fixing his commission. She subsequently, as Mr. Giltinan testifies, became disquieted (whether reasonably or not is of no consequence) and caused the Words “subject to my approval” to be inserted in the written memorandum employing him. Mr. Eerris, Mrs. Brennan’s attorney, who attended to this change, says it was done about the middle of July. Shortly, after this, about the middle of August, she, by her attorney, withdrew this paper altogether from Mr. Giltinan. Mr. Giltinan continued to receive offers and to discuss the sale of the property with Mrs. Brennan for some time after the withdrawal, reporting offers, which were not accepted. But if it be assumed that Mrs. Brennan allowed Mr. Giltinan to retain any authority to sell, the real question on this branch of the case is, what was the character of that authority at the time he contracted with Kelly ? That it was originally in writing and unlimited all agree. That it was modified is also undisputed. The reason for the insertion of the words “ subject to my approval” was stated by Mr. Giltinan himself to be the annoyance which Mrs. Brennan suffered because of the representations of parties in Atlantic City “as to the danger she was in by my having full power of attorney to do as I pleased with her property.” This makes it obvious that Mrs. Brennan was unwilling to allow Mr. Giltinan an absolute power to make a sale of her lands, and that the -limitation requiring her approval was necessary to satisfy her mind. By the change this written authority was so restrained that if Mr. Giltinan undertook to sell as Mrs. Brennan’s agent he was thereafter obliged to subject his action to her approval. After this, he testified, that the same reasons led to the second call of Mr. Ferris (Mrs. Brennan’s attorney), when the latter took away the paper, now one of limited authority only. Mrs. Brennan is thus shown to' have been unwilling that Mr. Giltinan should exercise the authority of an agent, even subject to her approval. Mr. Giltinan claims that the taking away of the paper authority was a withdrawal only of the Atlantic and Iowa avenue lot, and not of the California and Pacific avenue lot, now in question. But the paper, as charged by Mrs. Brennán, authorized him to sell both these tracts subject to Mrs. Brennan’s approval, one no more and no less than the other. When it was taken away by Mr. Ferris (Mrs. Brennan’s representative), Mr. Giltinan testifies that Ferris “ made no comments and no remarks, and told me nothing in regard to any change of sentiments or instructions.” I think it must be taken that the withdrawal of this paper, which Mr. Giltinan defines in its original form to have been a full power of attorney, made an end of Mr. Giltinan’s authority to sell any of the land described in it. The demand by the principal for the absolute delivery of her letter of attorney, and its surrender by the agent, must be held to be a revocation. But even if this taking away of the written authority is held not to have removed the California and Pacific avenue lot from Mr. Giltinan’s control, whatever power he retained under it must certainly have been subject to her approval under the previous modification.

Mr. Giltinan, however, says that he afterwards had several interviews with Mrs. Brennan, the last in October, 1895. At this interview he testifies Mrs. Brennan told him she had withdrawn the Atlantic avenue lots from the market for the present; that she preferred selling the place now in dispute, and she would take $20,000 for it, and told him to sell it if he could get $20,000. This is the same price she had named to him about July 1st, 1895, when Mr. Doyle introduced him to her. Without admitting the full revocation of his previous power, it is under this latter verbal -authority that Mr. Giltinan claims he acted for Mrs. Brennan when he sold to Kelly. 'Mrs. Brennan was asked:

“Q. After the return of that paper, what authority, if any, did you give Mr. Giltinan to sell this property?

“A. Not any.”

She further says on cross-examination:

“ I told Mr. Giltinan that I wanted $20,000, but I didn’t recognize Mr. Giltinan as agent after I withdrew that; I said I wanted $20,000, but I did not say he must get it any more than anyone else.”

It is to be observed that Mrs. Brennan and Mr. Giltinan appear to be in direct contradiction each of the other. He claims that her direction to him created an unlimited power to bind her by written contract for sale whenever he could get $20,000 for the property. She declares that all she said to him was that her price was $20,000, but she did not give Giltinan any authority to sell, nor recognize him as her agent to bind her to a sale after she withdrew the written appointment. The complainant offered several persons who had conversations with Mrs. Brennan, some of them after the middle of August, when the written authority was withdrawn, who testified that Mrs. Brennan described Mr. Giltinan as her agent, and Mr. Kelly testified that she made substantially the same statement to him in October, 1895. None of these statements imputed to Mrs. Brennan were of a specific character, to define the nature and extent of the authority which Mr. Giltinan might have to act for Mrs. Brennan.

The claim of the complainant is that they amount to an admission by Mrs. Brennan that Giltinan was her agent with power to bind her by a contract for sale. Mrs. Brennan’s declaration is that after she withdrew the written authority Mr. Giltinan had no other right to represent her than the other person had who knew her price and brought her a purchaser. The witnesses who most accurately know what authority Mr. Giltinan had from Mrs. Brennan were of course these two persons themselves. It is, in my view, undisputed that Mrs. Brennan, in the summer of 1895, withdrew a writtén power which did confer upon Mr. Giltinan precisely the authority to act for her which, it is now asserted, she renewed by parol. It is also clearly shown that she took this power away, because she was unwilling that Mr. Giltinan should be able to dispose of her property, even subject to her approval. No reason is given why this deliberate act of Mrs. Brennan, done through her legal adviser, should have been nullified by herself unadvised, and the power renewed by parol without any limitation whatever. By a letter from Mrs. Brennan to Giltinan, dated August 31st, 1895, she writes in reply to a letter from him, “ I will not listen to an offer of that kind, only what I said.” In another, dated October 15th, 1895, she writes, evidently in reply :

“ The other lot, from Atlantic to Pacific, I do not care to sell at present, I prefer to sell from Pacific to Monterey on California ave., if I get -what I ask at present, if not, I will wait or divide off in lots.”

This is not the correspondence of a principal with an agent who is informed of the principal’s price and purpose, with power to bind her to a sale, but is evidently a letter of information to an inquirer who is seeking to find out whether an owner will sell, and if so, what lands. Evidently Mrs. Brennan believed that her approval was yet necessary to enable a sale to be made. Mr. Giltinan’s' letter to Mrs. Brennan, written November 23d, 1895, immediately that he had given the memorandum- of sale to Mr. Kelly, shows that at that time he stated the matter to Mrs. Brennan as if his action were still subject to her approval. He writes:

“I have succeeded in getting Mr. Kelly to give §20,000 for the piece of land owned by you on Pacific avenue to Monterey, §5,000 cash and §15,000 on mortgage at 6 per cent., payable in one or three years, the settlement to be made within thirty days if you approve.”

He immediately explains that this was the highest price she had named, that Kelly had paid $250, and that the reason he accepted this was that Kelly was about, to go away for several weeks. Thus in ihe very letter in which he announces to Mrs. Brennan the sale to Kelly, he submits the matter to her approval and excuses himself for taking a cash payment because of Kelly’s intended sudden departure. This is the first letter written by Mr. Giltinan to Mrs. Brennan which in any way assumes to act for her in any capacity regarding the sale of the lot. At once, on receipt of it, Mrs. Brennan wrote him in reply:

“ Respecting the lot in Atlantic City, the lot is sold; money paid on the agreement before Mr. Kelly thought of it. I think you have forgotten Aug. 12/95, that I withdrew these lots from the market. I think that if any business was to be transacted I should have been acquainted with it ”

Mr. Giltinan was recalled to the stand after all these proofs were in. He was again examined in relation to the insertion by Mr. Ferris, in July, 1895, of the words “subject to my approval,” in the written power. He testified that on that occasion, speaking to Mr. Ferris regarding the interpolation of these words, “I told- him I wanted nothing unless it was approved.”

Although there is some contradiction in the evidence, I think the weight of it goes to show that if Mr. Giltinan, on November 23d, 1895, when he gave Kelly his memorandum of sale, had any authority from Mrs. Brennan to act as her agent, it was only subject to her approval, which his sale to Kelly never received, as she disapproved it at once on notice of it.

Upon the second point, as to the priority of the agreements, the complainant claims that her .memorandum of sale was first made and obtained, and that Crosby’s was afterwards .procured to cheat her of her bargain. The evidence shows that Crosby’s agreement was obtained by a negotiation made directly with Mrs. Brennan in person, at her Philadelphia office, by Mr. Devine, Mr. Crosby’s agent, at half-past one o’clock in the afternoon of November 23d, 1895; that at that time Mr. Giltinan, through whose alleged agency complainant claims her contract, was in Philadelphia, whence he returned that afternoon by the two o’clock train to Atlantic City, where, on the arrival of the train, he met the husband of the complainant, Kelly, and at half-past three in the afternoon gave him the receipt and accepted the $250, which constitute the evidence of the complainant’s claim. There is no dispute between the parties as to the order of time in which the events narrated háppened. Irrespective of questions as to the existence or extent of Mr. Giltinan’s authority to act as agent of Mrs. Brennan in the premises, and to bind her without her previous approval, by a contract to sell, it appears that Mrs. Brennan had herself entered into a contract with Crosby to sell him the property, and had accepted $500 payment on account of the purchase-money before Giltinan, acting as her agent, had made any agreement whatever with Mr. Kelly, or had even heard from him that he was willing to pay the full price. The letters and telegrams and checks produced support the statement that the sale by Mrs. Brennan to Crosby’s agent preceded the sale by Giltinan to Kelly beyond any doubt whatever..

When Mrs. Brennan, the principal, contracted with Crosby, that act, of itself, stripped her agent, if she had one, of all power to make another contract in derogation of that entered into by his principal. The agent could have no greater authority than the principal, and the latter having disposed of the subject-matter of the agency, the power of the agent to act any further in the premises was at once ended. When Giltinan, as agent for Mrs. Brennan, undertook to deal with Kelly, the lot had already been sold by Mrs. Brennan, and partly paid for, and consequently this later transaction was of no force.

The complainant’s charge against the defendant Crosby is that he, knowing of the complainant’s previous purchase, entered into a pretended contract on the following day to buy the property from Mrs. Brennan, and her prayer is that her contract with Mrs. Brennan,-obtained as set out in the bill from Mr. Giltinan, may be specifically enforced by a conveyance &c., upon payment of price &c., mortgage made &c.

Crosby denies this charge by his answer, and sets up his own agreement made with Mrs. Brennan by his. agent, Devine, as prior in point of time and without notice of any agreement of complainant.

The issue presented between these parties is then simply and only whether Crosby, after complainant had obtained her agreement, and having knowledge of this fact, secured another from Mrs. Brennan in favor of himself. The complainant thus bases her whole complaint against Crosby solely upon her alleged priority in securing her own contract.

The review of the evidence above given shows that the agreement which Devine, Crosby’s agent, procured for him in Philadelphia, was, in fact, made before the contract between Kelly and Mr. Giltinan in Atlantic City, though on the same day. The supplemental and fuller agreement with Crosby was signed by him on the same day in Atlantic City, and perfected on the following Monday in Philadelphia by Mrs. Brennan. It is also shown that the Kelly contract, by reason of the lack of authority of Mr. Giltinan at the time of making it to bind Mrs. Brennan, is of no force to enable the complainant to maintain her bill and entitle her to the relief she asks,' against either defendant.

I will advise a decree dismissing the complainant’s bill, with costs.