
    John P. Johnson v. William H. Furnish.
    1. Agency; Contract Construed. Where J., the owner of a tract of land, wrote to his agent R., authorizing him to sell the land for $475 cash, the purchaser to pay the agent’s commission; and thereupon R. executed a contract for the sale of the land to F. for $475 and his commission, the money to be paid as soon as the land was cleared of all tax incumbrances, and providing that J. executed a warranty deed, held, that such contract was not a time but a cash contract, and was not in excess of the authority conferred.
    2. Specific Performance, Enforceable. The contract above referred to was made with and in the name of F., but by an arrangement between F. and S. the land was to be conveyed to S., and R., without naming the purchaser, wrote to J. to make the deed to S. Held,, That this arrangement was no fraud upon J., and though S. afterward declined to carry out his arrangement with F. or to take the land, the latter could enforce a specific performance of his contract with J.
    
      Fhrror from Brown District Court.
    
    At the May Term, 1882, of the district court, plaintiff Furnish had judgment against defendant Johnson, who brings the case here. The nature of the action, and the facts, appear in the opinion.
    
      Albert Perry, and C. W. Johnson, for plaintiff in error.
    
      Jas. Falloon, for defendant in error.
   The opinion of the court was delivered by

Brewer, J.:

This was an action in the district court of Brown county, brought by defendant in error, plaintiff below, to compel the specific performance of a contract for the sale of real estate. A decree was entered in favor of the plaintiff, and defendant alleges error. The facts are these: In 1879, the land belonged to one J. S. Johnston, a resident of Illinois. In the spring of that year he visited Brown county, and applied to one Rounsaville to act as his agent for the sale of the land, naming $480 as the price. Nothing was done during that year, but in the spring of 1880 the plaintiff applied to Rounsaville to purchase the land. On the strength of this application, Rounsaville wrote to Johnston, asking if he still owned the land, and what was his price. Johnston replied that he would sell for $720. To this Rounsaville answered, saying that a neighbor offered the sum of $475, part in cash, and part on time. This letter was dated June 8, 1880. The name of the proposed purchaser was not given. On July 31, Johnston wrote, saying: “We will take $475 cash, purchaser paying your commission.” On the strength of this letter Rounsaville, as agent for Johnston, executed a contract of sale to plaintiff, in which he recites that Johnston has sold to Furnish the land, describing it, for $475, and the commission of Rounsaville as agent, “to be paid as soon as said Johnston has cleared the same of the tax title and taxes thereon up to the year 1880, when said Johnston is to execute his warranty deed to the sale.” This contract was placed on record. The agent also wrote to Johnston, as follows: “Your man says he has the money, $475, ready for you, and now prefers to pay the cash rather than to ask you for time on the 120 acres of land. He will settle with me for my commission, and you receive by return express or mail, as you may direct, the sum of $475, in accordance with directions in your letter. Make out deed in favor of Luther Sperry, and inclose clear abstract of title up to date.” It will be seen that in this letter the agent directed a deed to Luther Sperry, although the person with whom he had made the contract was the plaintiff, Furnish. This was the first time that any name had been given to, Johnston. The facts in reference thereto are these: Furnish intended to borrow from Sperry the money to make payment of the land, but after some negotiations finally agreed to let him have the land at an advance of $100 above the price he was to pay, and so directed the deed to be made to him. Upon an examination of the title it was found to be incumbered with a tax deed belonging to one Bierer. ■ Negotiations were had with Bierer for the purchase of his tax title, but they failed; so, at the instance of Johnston, a suit was brought to set aside the tax deed. This suit resulted in setting aside the tax deed upon the payment of the taxes and interest for which it had been executed. This suit of course caused considerable delay, and the taxes, interest and costs charged against the land as the result of litigation amounted to over $200. Sperry, tired of the delay, declined to carry out his contract with Furnish, and Furnish thereupon insisted upon the deed being made to himself. This was the first intimation that Johnston had that Furnish was the real purchaser. In the meantime, Johnston, irritated at the delay, at the result of the suit to set aside the tax title, and evidently suspicious of the conduct of his agent, had written to his-co-defendant, the present plaintiff in error, John P. Johnston. After some correspondence he finally sold the land, and conveyed it to said John P. Johnston. Thereupon this suit was commenced to compel a specific performance of the original contract, which resulted, as heretofore stated, in a decree for the plaintiff; and now defendant claims that there was error in said decree, and for these reasons: “First, the contract of sale executed by Rounsaville, who, to say the most, was only a special agent, being unauthorized by the principal and in violation of his instruction, conveyed no equitable title to the land; second, the contract of sale, dated August 2,1880, was a fraud and an imposition by the agent and Furnish on J. S. Johnston. They had led J. S. Johnston to believe that a sale had been made to one Luther Sperry, and even after they ■claimed the contract was signed, directed the deed to the land to be made to Sperry; third,'J. P. Johnston is a subsequent purchaser without notice.”

We disagree with counsel, and think that upon the evidence none of the three reasons can be sustained. Aside from the parol authority given to Rounsaville in 1879, there was the written authority from Johnston in 1880 to sell the land for $475 cash, net. The contract executed by Rounsaville was not in excess of the authority conferred. It purported to sell the land for $475, the same to be paid as soon as the land was cleared of incumbrances. This was not as counsel contend, a time contract, but a cash transaction. It only stipulated for that which the purchaser was entitled to upon the authority given in the letter, and that was a clear, unincumbered title, and an ordinary warranty deed. Certainly, when the owner of real estate authorizes a sale of it, he means, in the absence of special words of restriction, that the real estate shall be unincumbered, and that he will make an ordinary warranty deed. Johnston’s letter to Rounsaville authorized him to make the contract which he did in fact make, and the contract when made was binding on Johnston.

Again, the contract was no fraud upon Johnston; neither was there any imposition practiced upon him in directing the deed to Luther Sperry. It was nothing to him as to who should be named as grantee in the deed. All that he had a right to insist upon was the $475 in cash, and whether the purchaser wanted the deed made to himself, his wife, a child, or a stranger, was a matter which in no manner concerned the vendor, and gave him no ground of complaint.

Again, the delay in the accomplishment of the sale resulted only from Johnston’s efforts to remove the tax title from his land, and was not a matter for which the purchaser was to blame, or which in any way affected the validity of the contract or the rights of the purchaser therein. Again, John P. Johnson had read the contract of sale before he took his deed from John S. Johnston, and was therefore not a purchaser without notice. We think, therefore, in conclusion, that the findings of fact were justified by the testimony and compelled the decree which was made, and it will be affirmed.

All the Justices concurring.  