White v. Breen

106 Ala. 159

Opinion

HEAD, J.

— The question in this cáse is whether the writings appearing in evidence constitute such a memorandum of a contract of sale of the lots by Broen to Mrs. White as satisfies the statute of frauds. Breen was the owner of lot numbered 4 in block numbered 72, situated on Montgomery Avenue, and lots numbered 4 and 5 in block numbered 96, situated on Annapolis Avenue, in the city of Sheffield, Colbert county, Alabama. He owned no other property in that city. On November 6, 1890, he wrote from New Kingston, Pa., to W. H. Ruffin, Esq., of Sheffield, as follows: “Would you be kind enough to hunt up a purchaser for my property in Sheffield, Ala. I will sell at a reasonable price — hoping to hear from you on the subject soon, I remain, Yours Truly, Albert Breen.” Ruffin replied that he was not a real estate agent, but if he, Breen, desired, he wpuld secure the service of an agent in whose hands he would .place the property for sale ; to which he received the following reply, written from New Kingston, November 13, 1890 : “Your favor of the 8th came to hand last evening. I -wish you would please secure the services of some good reliable person to sell my property at any sum above five thousand dollars, $5,000, nothing less. * * * Please start the sale as soon as you can, and oblige, Yours Truly, Albert Breen.” Thereupon, Ruffin placed the above described lots, which, as we have said, were the only property owned by Breen in Sheffield, in the hands of A. J. Moses, areal estate agent, and so notified Breen by letter. In the latter part of November, 1890, Breen came to Sheffield, when Ruffin introduced him to Moses as the person in whose hands he had placed the sale of the property. Thus, the writings, to this point, without the aid of extrinsic evidence, place Breen’s property, in Sheffield, Ala., by his act, in the hands of Moses, as his agent, for the purpose of finding a purchaser.

On December 9, 1890, Moses wrote Breen, from Sheffield, as follows : “I have a customer who will take the property, viz. : lot on Montgomery Ave., and the two lots and improvements on Annapolis Ave., for $5,000 at $1,666.66 payable January 1st, 1891, balance in 12 months. He will, if you desire, pay down $100, to close trade, this sum to be deducted from cash payment. Reply at onco. Yours etc. A. J. Moses.” To this letter Breen replied as follows : “Birmingham, Ala. December 14th, 1890. A. JuMoses, Esq., Sheffield, Ala. I returned this morning from Greensboro, Ala., where I have been on business. Your letter of Dec. 9th was handed to me on ray arrival here this morning. X -regret very much indeed that I was not here when it came. I will accept the trade if one hundred dollars are paid down as a security — hope you can make a trade with same party. Hoping to hear from you soon on the subject. Address as before. Very Truly, Albert Breen.” To which Moses replied as follows : “Sheffield Ala. Doc. 16th, 1890. Albert Breen, Esq., Dear Sir : — I have closed with Mrs. W. S. White for the sale of the two houses on Annapolis Avenue and lot on Montgomery Avenue for $5,000 as follows : $.100 cash, $1,566.66 payable January 1st, 1891, $3,833.33 payable in twelve months. I wish you to have deed forwarded so as to execute new deeds and mortgage. The former will have to be sent to Mrs. Breen for her signature, so you had better not delay forwarding papers to my address, and state where new deeds will reach you for signature. I hold $100 to confirm trade. Very Truly, A. J. Moses.” To this, Breen replied, by telegraph, as follows : “Birmingham, Ala. Dec. 17th, Í890. 9 :45. To. A. J. Moses. Yours all received and contents noted.. Have sent for deeds, shall forward as soon as received. Let me know if mortgage is to bear interest. See if Ruffin got letter for me at Cleveland House, and forward the same. Albert Bi-een.” To which Moses replied by letter, as follows: “Sheffield, Ala. Dec. 17, 1890. Mr. Albert Breen. Dear Sir : — Your telegram received. Mr. Ruffin forwarded your letter yesterday. While nothing was said in reference to interest on deferred payment, it is customary and I so understand it, as custom in every case shows deferred payments bear interest, particularly where property is improved and producing an income. Very Truly, A. J. Moses.” On the next day, December 18th, Breen, by a message to Moses, through a letter to Ruffin, repudiated, or attempted to repudiate the trade, on the ground that his wife would not sign at such a low figure, to which Moses replied by letter on the 20th, insisting that he, Breen, was bound, and urging him to carry out the contract. On the 26 th, he wrote Moses ex pressing a willingness to close the trade by executing the papers and accepting a mortgage, but exacting eight per cent interest on the deferred payments, to -which he thereafter adhered. , Mrs. White refused to submit to this exaction of interest, and brought this action to recover for the alleged breach of agreement to sell. When Moses made the bargain with Mrs. White, relied on,, she paid him $100 in cash, and he executed to her a receipt as follows : “Sheffield, Ala., Dec. 15th, 1890. Received from Mrs. Mary T. White one hundred dollars on account of purchase of two houses and lots on Annapolis Avenue and one lot on Montgomery Avenue belonging to Albert Breen. A. J. Moses, agent.”

The foregoing are the material facts. Upon them, two questions arise : 1st. Did Moses, as agent of Breen, make a contract of sale binding upon his principal? 2d. Did Breen himself make such a contract binding him to its performance? The first question subdivides itself into two inquiries, viz. : (1.) Was Moses lawfully authorized, in writing, by Breen to make the contract? (2.) If so, do the writtings show that, in pursuance of such authority. he made a contract evidenced by some note or memorandum thereof, in writing, expressing' the consideration, and subscribed by him ? The principles of law growing out of our statute of frauds, in reference to contracts for the sale of land, or any interest, therein, have been often and fully discussed in our adjudications. It is well settled that the form of the writing required by the statute is not material. The contract maybe evidenced by one writing, or more. It may be shown entirely by written correspondence. Whatever form the agreement may assume, if the writing or writings, vie wéd as a whole, constitute,in essence and substance, upon their face, a note or memorandum in writ-, ing, subscribed by the party sought to be charged, or his agent lawfully authorized in writing, showing who the contracting parties are, the subject matter of the sale and the consideration, the statute is satisfied. — Jenkins v. Harrison, 66 Ala. 357 ; Carter v. Shorter, 57 Ala. 253 ; Knox v. King, 36 Ala. 369. In cases of single instruments, their sufficiency is generally of easy determination. Greater difficulties arise when, in cases like the present, the required evidence of the contract is sought to be produced by the adjustment and adaptation to each other of several letter's and writings containing the negotiations of the parties, and the supposed culmination of these negotiations in a binding agreement of sale. In cases of this character, it is certainly not essential that the party charged should have subscribed each paper forming a link in rhe chain of evidence. If the several writings, upon their faces, viewed in the light of the situation and circumstances of the parties at the time they were written, clearly relate to, and connect themselves with, each other ; and when their contents are adjusted and adapted to each other, according to their reasonable and practical import, evolving, in form and order, the manifest sense and meaning of the parties, there appears to have been clearly made known the names of the contracting parties, the subject matter of the sale, and the consideration ; and if it appears that all this has received the sanction of the subscription of the party sought to be charged, or some person by him thereunto lawfully authorized in writing, the statute requirement in reference to subscription, as well as all other particulars, is met. We said the several writings must, upon their faces, clearly relate to, and connect themselves with, each other. The rule, however, does not necessarily require express mention in one document of another; or in each, of all the others; and this statement, we conceive, does not modify the rule, when properly interpreted, as it is stated in Knox v. King, 36 Ala. 367, viz.: “When the memorandum in writing is itself incomplete, it can not derive aid from another writing unless the memorandum refer to the other writing.” And that, “Oral evidence can not be received to connect the two or to supply the wanting, link.” This last rule is subject to the exception which obtains generally in the construction of written contracts, that the situation and circumstances of the parties may be looked to, when necessary, to aid in arriving at the meaning of what they have written. An explanation of these rules will be found in Jenkins v. Harrison, 66 Ala. 357, supra. We are of opinion that when all the writings adduced, viewed together, in the light of the situation and circumstances of the parties at the time they were written, show unmistakably that they relate to the same matter and constitute several parts of one connected transaction, so that the mind can come to no other reasonable con elusion, from the evidence so afforded, than that they were each written with reference to those concurrent or preceding, then, there is such a reference of the one to the other as satifi.es the rule, although reference in express terms does not appear. The rule is one founded in reason ; and when, as practical men, we look at the writings and see, inhering in them, evidence which entirely satisfies the mind that they all relate to one general transaction, there is no reason why they should not be so considered. There is in such case a direct reference of the one to the other within the meaning of the law. The application of the principle to the facts of this case will illustrate our meaning. The case of Beckwith v. Talbot, 95 U. S. 289, aptly illustrates it.

These rules of law relating to the form of the agreement, and by -which several papers may be considered as bearing a connection with each other, apply as well to the creation of a power of attorney to sell lands, as to the requisite note or memorandum of the contract of sale ; but, in other respects, the characteristics of the two — the power of attorney and the note or memorandum of the contract — are essentially different, and controlled by different principles. Unlike the former, the present statute requires the authority of an agent to subscribe the note or memorandum of the contract for the sale of land for his principal to be conferred in writting. No form or method of execution of the power of attorney is prescribed. It may be in, any form clearly showing the agent’s authority, and be executed according to any recognized common law method of executing written instruments. The power may be general, to sell any lands of the principal, to any purchaser, upon any terms; or it may be partly general and partly special or limited, as to sell particular land, to any purchaser, on any terms, or particular land to any purchaser on particular terms; or it may be entirely special, as to sell particular land, to a. particular purchaser, on particular terms. In either case, the agent, keeping within the scope of his authority, may make the contract and execute the necessary written evidence binding his principal to its perfor manee.

We think it is not to be denied, that, if the lands were sufficiently identified, Breen did execute to Moses a power of attorney to sell these lands.' Let us settle first whether the identification was sufficient. The power to sell is contained in the letter of Moses to Breen of December 9,1890, and Breen’s direct reply thereto, expressly referring to it, of December 14th, 1890. These letters are above set out. In them, the only description given is, “the property, viz. lot on Montgomery Ave., and the two lots and improvements on Annapolis Ave.” This, unaided is clearly insufficient. Is it rendered sufficient by other writings? Here, the principles herein discussed, touching the manifestation of agreements by several writings and their reference to, and connection with, each other, are applicable. We have seen, that on November 6, 1890, Breen wrote to Ruffin requesting him to hunt him up a purchaser for “my property in Sheffield, Ala.” Ruffin replied that he was not a real estate agent, but that if he, Breen, desired, he would secure the service of an agent in whose hands he would place “the property” for sale. Breen replied on November 13th, 1890, expressly referring to Ruffin’s letter, saying, “please secure the services of some good reliable person to sell my property,” &c. Thereupon Ruffin wrote to Breen, informing him that pursuant to instructions, he had placed in the hands of A. J. Moses lot numbered 4 in Block numbered 72 and lots numbered 4 and 5 in Block numbered 96, the former being on Montgomery Avenue, the two latter on Annapolis Avenue, all in the city of Sheffield, county of Colbert, and State of Alabama. The bill of exceptions leaves no room for any other interpretation than that this letter of Ruffin to Breen described the property he had placed in the hands of Moses as above stated. It was also proved that Breen was so circumstanced, at that time, that he owned no other property in Sheffield. Following close upon this correspondence, came the letter of Moses to Br.een, of December 9th, saying he had a customer who would take, “the property, viz., lot on Montgomery Ave., and the two lots and improvements on Annapolis Ave.,” &c.; to which Breen replied, conferring authority to sell. This letter of Moses does not expressly refer to the Ruffin correspondence, but in pointing out the property to which it relates, he employs the definite article, implying, beyond all doubt, some precedent matter understood by both, which rendered a more definite reference unnecessary. It also gives the avenues on which the lots are situated. It is impossible, we think, for the mind to conclude that this letter did not have direct reference to the'precedent correspondence between Breen and Ruffin, though express mention of that correspondence was omitted. ' We accordingly hold that the correspondence with Ruffin properly enters into the make up of Moses’ power of attorney, and, with the other letters, renders sufficient the identification of the property authorized to be sold. 'The result would be the same if the last letter of Ruffin to Breen had not minutely described the lands as above set forth. In that case, the description afforded by blunging together the several letters, would be, substantially : !‘The three lots in Sheffield, Alabama, belonging to Albert Breen, viz., the one located on Montgomery Avenue" and the two on Annapolis Avenue” — the proof being that Breen then owned no other property in Sheffield than the lots in question. This is a sufficient description. See authorities cited on brief of appellant’s counsel. What then was the nature and effect of this power of attorney? It was of the class we designated as entirely special and limited. The authority was to sell the particular lots, to the particular customer, at a specified price and on specified terms. The judgment and discretion of Breen, in respect of every element of the bargain, were expressed in the power, and were to be exercised by the agent. Indeed, this power of attorney, save in a single particular, contains within itself a statement of every element of the contract requisite to a sufficient note or memorandum, under the statute of frauds. It fails only, in that the name of the purchaser is not stated. She is pointed out to the agent, not by name, but as the customer who had proposed to buy. This, as we have shown, while insufficient as evidence of the contract because it does not disclose the name of the purchaser, was sufficient for the purposes of Moses’ power to sell to Mrs. White — she being in .fact the customer referred to. It authorized him to close the bargain, and execute to her the necessary note or memorandum under the statute ; and if the receipt he executed to her had set forth the lands, the price and the terms of sale, there could be no further question of its binding force upon Breen, the principal. But, it omitted these essentials ; and the question arises whether they are supplied by reference to the power of attorney which sets them forth. The receipt itself discloses all other essentials, viz , the names of the contracting parties. The receipt was subscribed by the agent thereunto lawfully authorized in writing. The power of attorney was subscribed by Breen himself. The two combined express all the elements of the contract required by the statute. Neither, of itself, does. The principles of law growing out of that provision of the statute under consideration, as we have already remarked, have been often discussed in this court. We can go to no better source of information on the subject than the elaborate and able opinion of Chief Justice Brickell, in Jenkins v. Harrison, 66 Ala. 357, supra. We will not enlarge this opinion by reproducing what he there said. We extract from it, and from the books at large, that the purpose for which a note or memorandum relied on was made, is not always controlling. “Writings, even letters addressed to third persons of which the party availing himself as evidence had no knowledge when they were written, and which were not written with any view to the éxecution, or to furnish evidence of the contract, have been received as evidence to meet the requirements of the statute of frauds, and upon the evidence derived from them the contract enforced.” Undelivered deeds ; deeds delivered in escrow, may furnish the necessary evidence of the contract. In short, all that the law demands is a written statement of the essential elements of the contract over the signature of the party sought to be charged, or his duly authorized agent, so that the establishment of the contract be not left to oral evidence. When an agent contracts, for his principal, with another, under written authority, the writing, in contemplation of law, is before the parties at the time the contract is made. They are bound to know its contents. The contract derives validity from the power. If the agent executes written evidence of the contract, the power of attorney enters into, and forms a part of it. The two constitute a unity and are inseparable. Under the power, in the present case, Moses was authorised to execute a full and complete note or memorandum, binding Breen. That can not be disputed. If so, then he was authorized to execute such a note or memorandum as, under the particular circumstances , was necessary to the production of full written evidence of the contract, under the statute. Hence, when called upon to act, he found that Breen had, himself. defined, over his own signature, the ven lor, the land, the price and terms of sale, lu a writing which must needs enter into and become part of any writing ho, the agent, could execute ; thus furnishing all the evidence of what the contract was, except the name of the purchaser; and, being thereunto duly authorized, iu writing, he executed the receipt supplying that deficiency. We have no doubt that this was a full compliance with the statute. Full legal evidence of the contract was thereby provided.

We stated for decision, the second question, viz.: Whether Breen did not himself conclude the contract of sale after Mrs. White was reported to him as purchaser? We deem it, however, unnecessary to decide it, as the views we have announced are evidently conclusive of the plaintiff’s right of action.

Keversed and remanded.