
    Hannah M. Van Epps, Resp’t, v. Simon Clock and John Wells, App’lts.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 20, 1889.)
    
    Specific performance.
    One S., who had been an agent for 0., wrote, inquiring his price for a farm. 0. answered giving price and asking S. to attend to the matter for him and S. then made a paroi contract for the Sale of said farm to plaintiff and notified C., who did not reply. Plaintiff went on the farm and made improvements. W., who knew of the contract, purchased the farm of 0. and ousted plaintiff. Held, that S. had apparent authority to make the sale; that plaintiff was warranted in acting on such authority; that there was a part performance sufficient to take the case out of the statute of frauds; that W. was not a tona fide purchaser, and that plaintiff was entitled to a specific performance of the contract.
    Appeal from' a judgment entered in Madison county upon a decision made at a special term held in that county on the 15th day of November, 1887, Hon. H. Boardman Smith, justice.
    Action to compel the specific performance of a contract for the purchase of eight acres of land in the town of Sullivan, described in the complaint and known as a wood lot, which were, in 1887, owned by the defendant Clock, who resided in the town of Minden, Montgomery county. The plaintiff alleged a purchase of the premises for $250 in the month of April, 1887, of the defendant Clock, under arrangement entered into for that purpose with one Sheldon Smith, who had acted as agent of Clock in prior transtions, and who is claimed to be Clock’s agent for the purpose of making sale of the lands. In the month of May, 1887, the defendant Wells, upon an application to the defendant Clock to purchase the premises and the payment to him of $250? received a deed from Clock, and thereafter ousted the plaintiff from the possession of the premises. Plaintiff’s right of recovery is rested upon prior purchase of premises, possession taken under the contract of purchase, of readiness and offer to pay, and demand of deed from Clock; and averments that Wells knew of her contract to purchase before he negotiated for and took a deed from the defendant Clock, in the month of May, 1887.
    Findings of fact were made which fully sustain the position of the plaintiff, and an opinion was delivered by the trial judge upon the principal questions involved in the ■case. (See folio 702).
    
      S. Earl, for appellant Clock; M. E. Driscoll, for appellant Wells; W. G. Tracy, for resp’t.
   Hardin, P. J.

In Lobdell v. Lobdell (36 N. Y., 330), it was said, viz: “The rule which courts of equity have adopted in suits for the specific performance of contracts, requires that the contract be established by competent and ■satisfactory, proof, to be clear, definite and certain, for the reason, as Judge Story expressed it, that a court of equity ¿ ought not to act upon conjectures,’ and if the proof should •end in leaving the contract uncertain, so that the court cannot say what its precise important limitations are, a decree for a specific performance will be withheld. All this depends upon the evidence, and if evidence is given in the ■court below, tending to the establishment of such a contract, the sufficiency of the proof to satisfy the mind of the court as to the existence of the contract, with the requisite degree of clearness and certainty, is not a matter for this court to consider.”

Findings have been made by the trial judge upon evidence which, to his mind, was satisfactory, and although there was some conflict in the evidence, the conclusions reached by him, seem to us, from an examination of the appeal book, to accord with the weight of the testimony.

Sheldon Smith had, for several years, been entrusted ' with business transactions for the defendant Clock; however, in April, 1887, as he testifies, he “had no other business for him, Clock, except this.” (folio 23.) On April sixth, Smith addressed a letter to Clock in response to a letter which he had theretofore received from Clock, in which Smith said, viz: “ I went and see,n to that wood lot, and

paid the tax on it; it was thirty-one dollars. Mr. Van Epps would like to buy it this spring; he wanted me to ask you how much you want for it.” That letter was received by ■defendant Clock, and on the lath of April, 1887, in response to Smith’s letter, he says: “ How about the wood lot; my

price is $250; that is what it cost me, and I will sell it for that sum. Please tend that business for me. I want you to let me know in time so that I know how it is.”

Reading the language just quoted in connection with the ■circumstances surrounding Clock and Smith, and considering the relations existing between them, we are inclined to the opinion that the expression: “Please tend that business for me,” was used for the intention of soliciting Smith to attend to the business of selling the wood lot for Clock, for the sum of $250. Smith evidently so understood the letter, and evidently so informed the plaintiff and her husband, for, after receiving it, he held an interview with the husband in behalf of the plaintiff, and according to his testimony, he left his home in Cicero, and y/ent to see the husband of the plaintiff. He expressed it in his testimony as follows: “ Mot long after receiving this letter, I went to Hr. Van Epps, and took the letter with me. * * * I was down there, and they wanted to buy it at that price, and wanted me to write to Mr. Clock, and I did so; then they said they would take it at that price, and then wanted me to write to Mr. Clock that they would take it at that price, and I done so, and I never got any answer,to that letter; whether he would or would not, at all; * * * they claim it was a bargain; they said they would take the place; I showed them the letter; * * * they said they would pay the money the first of June, when Mr. Clock came up;: I told him he had to come up about the first of June, and would be up if nothing happened more than we knew of;he said if he had it he wanted to clear up some and put it to buckwheat or something; * * * I might have said it would not make any difference or something; * * * I' don’t know whether I did or not; I then went home and wrote to Mr. Clock; * * * how soon after I got home I can’t tell; it might have been a day or two, or three or four; I never received any reply to the letter I wrote him; I directed my letter to defendant Clock, at Minden, Montgomery county; that is his post-office address; * * * the last letter I wrote to Mr. Clock, and the one to which I received no reply, stated, as near as I can tell, that Van Epps, would take the lot at that price, and would have his money for him when he came up the first óf June.” The testimony of the plaintiff and of her husband, in respect to the-details of the conversation held with Smith in the negotiation for the land, is more full and complete, and the circumstance that the letter which he, Smith, had received from Clock was brought out more distinctly, and the circumstances attending the conversation more fully discussed, and. the treaty held with Smith, as the supposed agent, with apparent authority to act for Clock in the sale of the woodlot, was given.

Their testimony also indicates that they were to be permitted to take immediate possession of the premises, and that they did so, and commenced labor thereon and continued to exercise acts of ownership and - acts indicative of possession, and to make alterations in the fences and the surface of the land in cutting away the brush and underbrush, continued such acts of ownership from the day following the purchase up to the fourteenth of May, which was the occasion of their receiving their first intimation that their contract made with Smith was not to be carried out—was doubted or disputed—and that Wells had interfered and procured a deed from Clock of the premises. We think the evidence was sufficient to sustain the findings of the trial judge to the effect:

First. That Smith appeared to have authority to make a. sale of the premises to the plaintiff on the occasion when the negotiation was had.

Second. That the plaintiff acted upon the apparent authority of Smith and was warranted in doing so.

Third. That she took possession in virtue of the negotiations and arrangement made with Smith in respect to the premises.

Fourth. That the several acts of ownership and the possession were in virtue of and under the agreement made with him, and they were “ sufficient performance to bring it within the well-settled rule that partial performance takes a-paroi agreement out of the statute of frauds.” Beardsley v. Duntley, 69 N. Y., 584.

While the improvements were slight, while the expenditures of the plaintiff and her agent upon the land were not great, while the money value of the improvement made by her was moderate in amount, it must be borne in mind that the purchase price or value of the land was moderate. The purchase price was $250. There is some evidence, and there is a finding that the value of the land was $400. Apparently, the expenditures in repairing the fences and cutting up the brush and underbrush and improving the lands, expenditures and improvements prior to the 14th of May, 1887, may not have exceeded ten per cent of the purchase price of the- land, yet under all the circumstances disclosed by the evidence given at the trial, we are constrained to say that the conclusion of the trial judge must be allowed to stand.

We are not able to say, after giving such influence to' his findings as they might legitimately receive in a case of this character, that his conclusion upon the facts is against the weight of the evidence found in the appeal book. We therefore accept his findings of fact in respect to the circumstances of the negotiation, contract made with Smith as the avowed agent of Clock, and’ having the apparent authority from Clock bo consummate a sale of the property to the plaintiff. Significance must be given to the circumstance, that appears beyond cavil, that about the 1st of May, 1887, Smith wrote a letter to the defendant Clock which apprised him of the negotiation and sale of the premises. In that letter Smith said: “I went over and see the man about this wood lot. He said he would get the money for you. He said he would give your price, $250, for it. * * * Mr. Van Epps will take the lot when you come up.”

The defendant, after receiving that letter, made no reply. . He in no manner refused to be bound by the arrangement which was thus communicated to him.

Apparently, he acquiesced in the sale of the property of which he was thus apprised. It seems, from the testimony, that when the agent of the defendant, Wells, applied to Clock for the purchase of the land, he seemed to understand that an arrangement had been made by which the plaintiff was to have the same, or that she had become the purchaser thereof. In one of the interviews held with him, the defendant, said, viz.: “He refused three different times to Mr. Marsh; that we were going to have the place; that is what Mr. Clock told me himself; that Van Epps’ folks were going to have the place.” (Eal. 183.)

Considering this evidence with the other we have referred to, we are of the opinion that the defendant Clock became bound by the arrangement which was made between the plaintiff and Smith in respect to the lands. Lawrence v. Taylor, 5 Hill, 107.

We have no doubt the learned counsel for the appellant. Clock is correct when he states, viz., “that the plaintiff and the defendant Wells had been for some time vying with each other in their attempts to buy these eight acres and considerable feeling had arisen between them on the subject;” and we are also of the opinion that the facts and Circumstances disclosed by the evidence in respect to the occupation of the premises under the arrangement made-with Smith for the purchase of the same by plaintiff, were sufficient to put the defendant Wells upon inquiry in respect to the rights of the plaintiff in virtue of the arrangement made with Smith. If inquiry had been prosecuted with diligence it must be presumed Wells would have ascertained the precise state of the arrangement between Smith, as the agent for Clock, with the plaintiff. Wells must be dealt with in the same manner as though he had prosecuted the matter with diligence and ascertained the actual situation.

According to Williamson v. Brown (15 N. Y., 354), it-may be said the negligence of Wells in pot prosecuting the inquiry is “fatal to his claims to be considered a bona fide purchaser.” As we said in Brumfield v. Boutall (24 Hun, 456), the rule requires “clear and strong circumstances," upon which the notice is found. We think the evidence in this case sufficiently comes within the rule which we-laid down in that case, and we may add, from the language used in the case from which we have just quoted, viz.: “We think it was just such a notice as would have awakened the diligence of a prudent man.”

We think there was such notice as, under the authorities, warranted the court in saying that the defendant Wells had actual notice of the relations which the plaintiff sustained to the property at the time he negotiated with Clock, and parted with his money, and took a deed of the premises. Ellis v. Horrman, 90 N. Y., 473.

The plaintiff was in possession, exercising acts of ownership within the sight of, and within the knowledge of, the defendant Wells before he (W ells) sought to conclude an arrangement with the defendant Clock. If he did not-make adequate inquiry it was his own fault.

It was said by Judge Story, in Flagg v. Mann (2 Sumner, 554): “If he does not inquire he is bound in the same manner as if he had inquired and had positive notice of the title of the party in possession.”

In Tuttle v. Jackson (6 Wend., 213), the chancellor said:

“Whatever is sufficient to make it his duty to inquire as to rights of others is considered legal notice to him of those rights.” These cases were cited and followed in the opinion of the court in Ellis v. Horrman (supra). See page 474.

Plaintiff resisted the efforts of Wells to obtain possession of the premises for some time. He persisted, however, in a resolute way by forcible means. He expelled her from the possession and obtained possession himself after he acquired the deed from Clock. Such possession, under such circumstances, however, gives him no added rights. He stands in the same relation to the property in equity that he would have occupied had she continued to assert her possession down to the day the action was commenced or down to the day of the trial thereof. We find nothing in Haight v. Child (34 Barb., 186) or Merrill v. Cooper (65 id., 519) which warrants us in saying that plaintiff’s Tights are any the less by reason of the compulsory surrender of possession after the purchase or deed taken by the defendant Wells.

We recognize the rule pressed upon our attention by the learned counsel for the appellant, Clock, that “where a vendee of real estate under a paroi contract, relies upon his entry into possession to take it out of the statute of frauds, his entry must be connected with and referable to the contract, and it must clearly appear that he took possession by the known permission of the vendor. If possession be taken without such permission, express or implied, it is no foundation for relief in equity according to any of the authorities.”

And as was held in Merrill v. Cooper, the possession must refer to the agreement of which performance is sought, but as we have already said, the trial judge has found upon adequate evidence that the possession of the plaintiff was in virtue of the contract; and her acts of ownership, her improvements to the land, to the fences, were made in virtue of the permission to take possession given to her by-Smith at the time he consummated the arrangement, that she might have the land upon paying $250 therefor to Clock when he came up in June, and that she might have immediate possession thereof.

Second. We are of the opinion that the court committed no error in allowing the witness Smith to state what arrangement was made with the plaintiff (fol. 32); nor in stating the price for which she might have the land (fol. 40); nor in making the ruling allowing the circumstances of that arrangement to be given in detail by the plaintiff (fol. 91); nor allowing the witness to state what was done upon the property after possession was taken in pursuance of the contract; nor in giving “general description” of the land (fol. 102).

Nor do we think it was error to receive the evidence in respect to the struggle between plaintiff and Wells over the possession of the property after she received notice from. Wells that he claimed to have purchased the same (fols. 114 to 116).

Nor do we think the defendants were prejudiced. by admission of testimony tending to show that the value of the land was $400. § 1003.

We have found nothing in the course of the trial which warrants us in disturbing the disposition made of the case upon the merits.

Judgment affirmed, with costs.

Martin and Merwin, JJ., concur.  