Kohlberg v. Havens

LANGDON, P. J.

This is an appeal from a judgment for the plaintiff in a suit to recover damages from the defendant on account of breach of warranty of authority to act as agent. The facts pertinent to a discussion of appellant’s contentions are that the plaintiff and H. Roscoe Havens, president of the M. H. Blake Estate Company, entered into a contract some time in April, 1910, whereby the plaintiff was to perform certain services, for which the Estate Company was to pay two thousand five hundred dollars. Later, when plaintiff sued the Estate Company for payment of this amount, the Estate Company denied the authority of the defendant to act as its agent in making said contract, and the plaintiff was nonsuited. He then brought the present action against the defendant for breach of warranty of .authority. The exact nature of the services to be rendered by the plaintiff is the subject of dispute.

[224]

The plaintiff claims that he was to secure the signature of Hale Brothers to a certain agreement in writing, which is set out in the findings, and which is an offer to lease1 to Hale Brothers certain real property belonging to the Estate Company, and particularly described therein, at a specified monthly rental, with an agreement on the part of the Estate Company to place improvements of the value of twenty thousand dollars upon the property, and also embodying other details relating to the respective obligations and rights of the parties. The defendant contends that the contract was that the plaintiff should not only secure the signature of Hale Brothers to this agreement, but should also secure their acceptance of another condition, which was not embodied in the written agreement, to the -effect that E[ale Brothers should occupy the leased premises, or a substantial part thereof, with their own business, and that this latter portion of his contract plaintiff failed to perform. The finding on this point is in favor of the plaintiff, and supports the judgment, and it is this finding which is a special subject of attack by the appellant.

[1]

Appellant contends that the agreement which Hale Brothers signed was an incomplete agreement and that their acceptance was never secured to a complete agreement for a lease. We think ttie agreement to which the plaintiff procured the assent of Hale Brothers is in all respects a complete agreement for a lease. It embodies all necessary terms of a lease, and was apparently satisfactory to the Estate Company, except, that it contained no provision against subletting. It is not sufficient to say it might have contained a covenant against subletting or other