I concur in so much of the opinion of Mr. Justice Watts as overrules the exceptions assigning error on the part of his Honor, the *Page 197 presiding Judge, in refusing the motion for a nonsuit, not only for the reasons stated by him, but on the additional ground, that it appears from the defendant's testimony, that he holds under the plaintiff, and it was for the jury to determine who had the better title.
In determining whether there was error, in refusing the motion for a nonsuit, this Court will consider, not only the plaintiff's but the defendant's testimony. Hicks v. Ry.,63 S.C. 559, 41 S.E. 753; Scates v. Henderson, 44 S.C. 554,22 S.E. 724; Fales v. Browning, 68 S.C. 19,46 S.E. 545; Woodward v. Cave, 79 S.C. 578, 61 S.E. 82.
But I dissent from his conclusion, that the exceptions should be overruled, which raise the question, whether there was error in directing the jury, to render a verdict in favor of the plaintiff, for possession of the land in dispute.
The following exceptions raise this question:
"That it was error to hold, that there was no testimony tending to show, the agency of the Corbin Banking Company for the plaintiff; whereas, he should have held that the testimony of Fred. Cook and G.H. Bates, showing the acts of the plaintiff, and of the Corbin Banking Company and Bates Simms, for her, were facts to go to the jury on the question of agency."
"That it was error to direct a verdict for the plaintiff, upon the ground that there was no testimony, going to prove the agency of the Corbin Banking Company, for the plaintiff; whereas, he should have held, that the testimony of the witness, Fred. Cook, to the effect that this property was put in the hands of the Corbin Banking Company by the plaintiff, for sale and rent through its president, Mr. Austin Corbin, with full power to act for said plaintiff, was some testimony to go to the jury, on the question of agency."
"That it was error to direct a verdict for the plaintiff, upon the ground that there was not a scintilla of testimony, that the plaintiff had ever ratified the sale of the land; *Page 198 whereas, he should have held, that there was testimony to go to the jury, to establish the agency of the Corbin Banking Company for the plaintiff, and the acts of Bates Simms as agents for the plaintiff, through the Corbin Banking Company, were binding upon the plaintiff, whether she ratified the sale or not, and was some testimony to go to the jury, on the question of ratification of the sale."
"That his Honor further erred in directing a verdict, upon the ground that there was not a Scintilla of testimony, going to show the ratification of this contract by the plaintiff, when the witness, George H. Bates, testified that the Corbin Banking Company had written to Bates Simms ratifying the contract, and they so informed the appellants, who, upon the strength of this ratification, entered into possession and spent considerable sums of money, in improving said lands, before he was notified, that the plaintiff declined to execute and deliver to him a deed."
The defendant introduced in evidence the following receipt:
"Barnwell, S.C. Oct. 4, 1904.
"Received of H.A. Williams three hundred dollars, as purchase money for 175 acres of land, more or less, known as the S.F. Harley place, in Bennett Springs township, now owned by C. Dupuy. This, however, is subject to approval of the owner of this land, and, if refused, the same is to be returned to the said H.A. Williams. Bates Simms."
Also the following certificate:
"Barnwell, S.C. Nov. 21, 1904.
"This will certify to all whom it may concern, that H.A. Williams has purchased the S.F. Harley place, containing 175 acres, more or less, and is entitled to the possession of the same. Bates Simms. Attorneys."
The defendant testified, that he entered into the possession of the land, soon after the said certificate was delivered to him: that he has made valuable improvements *Page 199 thereon, and has remained in the continuous possession thereof.
His Honor, the presiding Judge, made the following ruling: "There is enough testimony here, as to the agency of Bates Simms, of the Corbin Banking Company, to go to the jury." Thus showing that there was testimony tending to prove, that Messrs. Bates Simms were duly authorized by the Corbin Banking Company, to sell the land to the defendant. We do not, therefore, deem it necessary, to consider the question of agency in this respect, but proceed to discuss the question, whether there was any testimony tending to show, that the Corbin Banking Company, was empowered by the plaintiff, to sell said land.
Mr. Fred. Cook, a witness for the plaintiff, in his testimony, taken de bene esse, thus testified: "Are you connected with the Corbin Banking Company? If so, state in detail such connection. I came with the Corbin Banking Company, in the year 1874, and have been connected with it ever since, and as general manager for over twenty years past, and as such have had access to all their books and correspondence. Please state, as fully as possible, what you know in regard to the lands described in the complaint. The tract of land referred to is the property of C.E.R. Dupuy, of Paris, France, who placed her properties for sale and rent, in the hands of the Corbin Banking Company, through its president, Mr. Austin Corbin, with fullauthority to act for her." (Italics ours.)
Mr. George H. Bates, a witness for the defendant, testified as follows:
"Mr. Bates, you say that these receipts — Williams came and left the money with you? Williams came and offered $300 for the tract of land, and paid the money down in my hands, and I gave him a receipt, dated in October, 1904. I sent that offer to the Corbin Banking Company, and recommended that it be accepted, because it was the best offer we had ever had, and afterwards, I don't remember how long, *Page 200 we received a letter from the Corbin Banking Company, stating that the offer had been accepted, and when we received that letter, we gave Williams that certificate certifying that he had bought the land. He afterwards came for his title, and we wrote to the Corbin Banking Company, to know why the title had not been sent, and they replied that Mrs. Dupuy had refused to sign the title. We had been notified, that the offer had been accepted, before that. When they refused to send the title, we offered to pay Williams his $300 back, and he refused it, and we have got that money now. The Corbin Banking Company would not take it, because they would not send us the title. We have been holding it, subject to settlement in some way."
It will thus be seen, that the plaintiff placed the land for sale, in the hands of the Corbin Banking Company, with full authority to effect the sale; that the Corbin Banking Company, duly constituted and appointed Messrs. Bates Simms their agents, and that the transaction with the defendant, came within the scope of their agency; that the receipt and certificate were given, the defendant entered into possession of the land and made valuable improvements, and was notified that his offer had been accepted, before the plaintiffs refused to make the title.
If there was such a contract between the plaintiff, through her duly authorized agents and the defendant, as the Court, in the exercise of its equitable powers would enforce, then a revocation by her of the authority conferred upon her agents, could not convert the defendant, who entered by permission of the plaintiff through her agents, into a trespasser, even through the contract was not reduced to writing. passer, even through the contract was not reduced to writing.
"According to the authorities it seems, that putting the purchaser into possession, is to be considered as stronger evidence of part performance, than mere payment of the purchase money, for the reason that such act would be a fraud upon the purchaser, unless the agreement should be fully performed. `Especially will it be held to do so, when *Page 201 the party let into the possession has expended money in building or repairs, or other improvements, for under such circumstances, if the parol contract were to be deemed a nullity, he would be liable to be treated as a trespasser, and the expenditure would not only operate to his prejudice, but be the direct result of a fraud practiced upon him.' 2 Story's Eq. 765." Mims v. Chandler, 21 S.C. 480.
This language was quoted with approval in Bell v. LumberCo., 85 S.C. 182, 67 S.E. 151.
The present case is much stronger than the one just mentioned.
Furthermore, when a principal enters into a contract with an agent, whereby the agent undertakes to negotiate the sale of his lands, the authority thus conferred is either revocable or irrevocable, and, whether it is the one or the other, depends upon the terms of the particular contract.McCallum v. Grier, 86 S.C. 162, 68 S.E. 466.
As the question whether the plaintiff had the right to revoke the authority, conferred by her upon the Corbin Banking Co., was necessarily involved, in the ruling of the presiding Judge, he was not in a position to decide whether the plaintiff had such power, as the contract was not before him for construction.
It seems to me that these authorities are conclusive of the question, and that the judgment of the Circuit Court should be reversed.