Rottman v. Wasson , 5 Kan. 552 ( 1870 )

By the Court,

Kinsman, C. J.

This is an action brought in the court below by defendant in error to enforce the specific performance of a contract for the sale of land. The question involved is whether the agent is shown to have been legally empowered to bind the plaintiff in error in making the contract.

The agreed state of facts on which the case was decided is as follows:

“ That the defendant is the owner of the land in the petition mentioned; that he authorized said J. O. W. Paine to sell said land; that said authority was not in writing; that said instrument in writing in the petition set foi’th was executed as set forth therein, but that said Paine, who signed the defendant’s name to said instrument in writing, had no written authority or appointment so to do; that the plaintiff has deposited in court, the sum of money in said petition mentioned; that said defendant refuses to execute a deed to said land, as is set forth in the petition.”

These facts with the allegations of the pleadings, raise the question whether an agent can bind his principal in a contract for the sale of land, when not authorized so to do in writing. A question just now of considerable practical importance to the community generally, as well as to the parties to this suit.

Real Contract : ^ysmajfb“by'iml loL That the authority of an agent to contract for , ° the sale of land may be established by parol evidence, notwithstanding section six of the statute of frauds and perjuries [General Statutes, 505] is so well settled by a long course of adjudications, that it would be superfluous for this court to give reasons for upholding the rule. It has long been a rule of property, well known and acted upon, and at this moment is doubtless the basis of thousands of contracts in this state. To disturb a construction of that statute, so long and generally upheld, upon any real or fancied error in the reasoning upon which it was originally based, would be a perversion of the powers and duties of this court, no less than a great hardship and injustice to the many innocent parties who would be the sufferers by it. Ours is the much simpler duty of declaring the law* as we find it, and leave the legislature to change it, if a change is deemed desirable. The addition of the two words, “in writing,” to the section as it now stands, would make the change, and the statute would be what the counsel for the plaintiff in error desires us to declare it to be. It must be presumed that the legislature in its recent action in readopting the section as it stands, knew what it had been construed to mean and understandiugly passed it in its present form, with the construction that had been given it in this country and in England. To change it therefore, would be an act of legislation rather than construction.

We refer to a few of the cases whore the point has been decided as indicated. [Shaw v. Nudd, 8 Pick., 9; The inhabitants of Alma v. Plummer, 1 Maine, 1; Mc Worter v. McMahon, 10 Paige, 386; Worrall v. Munn, 5 N. Y., 229; Dodge v. Hopkins, 14 Wisc., 641; Johnson v. Dodge, 17 Ill., 433; Doty v. Wilder, 15 id., 407; Irvine v. Thompson, 4 Bibb, 295.] In England; Coles v. Trecothic, 9 Vesey, Jr., 249; Emmerson v. Hulis, 2 Taunton, 38; White v. Proctor, 4 id., 209.

The counsel for the plaintiff in error refers to section eight in the chapter on conveyances, [Gen. Stat., 186,] as furnishing a rule for the guidance of the. court in this case. This section has no application, because the chapter and section treat of conveyances and not of executory sales, such as is the one at bar; and because the words used, “trusts or powers” have no reference to the constituting of an agency in which no estate whatever is created, but simply an authority to sell land.

The point as decided above was also raised on the demurrer to the answer, and attempted to be raised by the demurrer to the petition. The action of the court below in sustaining the demurrer to the answer, is approved upon the principles herein settled, and overruling the demurrer to the petition on these as well as other grounds, not necessary here to state. 1 Maine, 1.

The decision must be affirmed.

All the justices concurring.