I concur in so far as the majority opinion affirms the judgment against Brasher, but am unable, for several reasons, to agree to an affirmance as to Priddy. I think the judgment against him should be reversed and rendered.
In the first place, the printed list is not a certain or definite offer to sell the lease at any price, and in my opinion is in fact and in law not an offer to sell at all. While it contains the recital, "Leases near the Burk-Waggoner well for sale by W. M. Priddy," this is followed immediately by the qualifying statement, "All prices subject to change or withdrawal." Fearing that this might not be sufficient to relieve him of an obligation to sell at $5,000, he wrote across the top of the list, "Subject to change without notice." Under the fundamental rules governing the formation of a contract as they relate to the elements of offer and acceptance, the printed list is not an offer because of its indefiniteness and uncertainty as to time and price. It expressly states that the price of $5,000 is subject to change, or even withdrawal, and that, too, without notice. It is a mere advertisement or announcement to the public that Priddy has the leases mentioned in the list which he may or may not, at his option, sell at the prices stated opposite each item. He could not by any combination of words more clearly or explicitly reserve to himself the right to change at any time or even withdraw the prices shown on the list, and that, too, without notice to any one, than has been done. Before an offer can be made the basis of a contract, it must be intended to create and capable of creating legal relations. No such relation could be created by any sort of acceptance under this lease until the acceptor had first ascertained from Priddy or his duly authorized agent that the price had not been changed or withdrawn. Until this was done there was no offer to be accepted, because no definite intent is shown by the list to sell the lease absolutely for $5,000.
"It is essential to a contract that the nature and extent of its obligations be certain. If an agreement is uncertain, it is because the offer was uncertain or ambiguous to begin with, for the acceptance is always required to be identical with the offer or there is no meeting of minds and no agreement. If the person to whom the offer is made sees the uncertainty and proposes a change which will make the agreement certain, this puts an end to the offer, and the agreement which he has suggested is the result of his new offer and the acceptance of the original proposal. Therefore, if the offer is in any case so indefinite as to make it impossible for a court to decide just what it means and to fix exactly the legal liabilities of the parties, its acceptance cannot result in an enforceable agreement." 13 C.J. pp. 266, 267, § 59.
"So a mere advertisement or announcement of goods for sale or a price list or circular calling the attention of prospective purchasers to *Page 150 goods or prices or a mere offer to sell goods generally does not constitute an offer to sell such goods as may be ordered at the prices named. Thus in the leading case it appeared that the defendant wrote to the plaintiff, saying: `We are authorized to offer Michigan fine salt in full carload lots of eighty to ninety-five barrels, delivered in your city, at eighty-five cents per barrel.' The plaintiff telegraphed: `Your letter of yesterday received and noted. You may ship me 2,000 barrels of Michigan fine salt as offered in your letter.' The court held that the letter did not constitute an offer of sale, saying: `We place our opinion upon the language of the letter of the appellant and hold that it cannot be fairly construed into an offer to sell to the respondent any quantity of salt which he might order nor any reasonable amount he might see fit to order. The language is not such as a business man would use in making an offer to sell to an individual a definite amount of property. The word "sell" is not used. They say, "We are authorized to offer Michigan fine salt, etc.," and volunteer an opinion that at the terms stated it is a bargain. They do not say "We offer to sell to you." They use the general language proper to be addressed generally to those who are interested in the salt trade. It is clearly in the nature of an advertisement or business circular to attract the attention of those interested in that business to the effect that good bargains in salt could be had by applying to them, and not as an offer by which they were to be bound, if accepted for any amount the persons to whom it was addressed might see fit to order. We think the complaint fails to show any contract between the parties.'" 1 Mechem on Sales, § 224.
The same author (sections 252, 253) says:
"A mere offer to enter into a contract can evidently operate only during the period of its continuance. The very purpose of its making, however, contemplates that it shall continue until the other party can act upon it unless it sooner expires by its express or implied limitations or is sooner revoked. But, being purely voluntary, it is equally obvious that the party making the offer may retract it at any time before it has ripened into a contract by acceptance."
Elliott on Contracts, vol. 1, § 27, says:
"Not only must there be an offer, but the offer must be made in such a manner and under such circumstances as to manifest an intention to create and change legal relations. * * * If it is intended merely to start negotiations which may subsequently result in a contract or is intended to call forth an offer from the one to whom it is addressed, its acceptance does not consummate a contract. * * * An agreement to be finally settled must comprise all the terms which the parties intended to introduce into the agreement, and until the terms of a proposal are settled the proposer is at liberty to retire from the bargain. This is particularly applicable to letters and advertisements intended to get trade. Communications couched in general language, proper to be addressed to all who are interested in a particular trade or business, are usually mere advertisements and not proposals."
Page on the Law of Contracts, vol. 1, § 84, says:
"The offer must be one which is intended of itself to create legal relations on acceptance. It must not be a communication of information as to certain facts which may interest the party to whom it is communicated or an offer intended merely to open negotiations which will ultimately result in a contract or intended to call forth an offer in legal form from the party to whom it is addressed. The commonest examples of offers meant to open negotiations and to call forth offers in the technical sense are the advertisements, circulars, and trade letters sent out by business houses. While it is possible that the offers made by such means may be in such form as to become contracts, they are often merely expressions of a willingness to negotiate. They are frequently declarations of intention as well as expressions of willingness to negotiate. Sometimes they merely give information as to certain facts, such as quantities, qualities, and prices. Whether they are one or all of these is immaterial at our law; the vital question being whether they are promises to incur liability."
In section 87 the same author says:
"Even if an offer is intended to create legal relations, it must be so complete that its terms will enable the court, with the aid of admissible extrinsic evidence, to determine what obligation is imposed upon each party, and whether such obligation has been performed. Contracts of these classes shade imperceptibly into contracts in which the parties have entered into covenants as to each of the matters involved in the transaction, but one or more of such covenants is so vague or indefinite that it cannot be enforced. A contract may be incomplete because the parties have intended to leave certain terms to be settled by subsequent negotiations."
It is said in 13 C.J. 289, § 97:
"Business advertisements, published in newspapers and circulars sent out by mail or distributed by hand, stating that the advertiser has a certain quantity or quality of goods which he wants to dispose of at certain prices, are not offers which become contracts as soon as any person to whose notice they may come signifies his acceptance by notifying the other that he will take a certain quantity of them. They are simply invitations to all persons who may read them that the advertiser is ready to receive offers for the goods at the price stated. It must be remembered, however, that in all these cases the question is one of intention, and that whether or not such transactions are to be construed as agreements depends on the intention of the parties as collected from the language used and the nature of the transaction."
The record shows that a well was going down on an adjoining lease; that there was already a rumor afloat to the effect that the well was a producer, and the aphorism that "fifteen minutes ago is ancient history in the oil game" applies to this transaction with peculiar force; the rule being that an offer to sell property subject to the fluctuation in the *Page 151 market is not generally considered a continuing offer. 23 R.C.L. p. 1283, § 99. I think the list is, at most, a general advertisement, intended to give brokers and prospective purchasers at large the information that Priddy was the owner of the leases therein listed and was a solicitation for offers to buy, leaving the matter of price open, and expressly reserving to Priddy the right to sell or not, at his option, and, if he decided to sell, then at a price to be fixed and governed by the condition of development in his neighborhood. It is hard to conceive that an owner of leases which might be practically worthless one moment and exceedingly valuable within a few minutes, dependent upon the coming in of a well on the adjoining lease, would make a stated, definite proposition to take a certain price when the whole record shows that the owner was an experienced oil speculator and an extensive owner of leases. While it is true that he has named a price, he has by such strong and unequivocal language indicated that the price was in fact no price at all that I think it is clear that he has a right to change it, and moreover can refuse even at the last moment to sell at any price, even when approached by a prospective purchaser or a broker to whom he has not fixed a definite price. Montgomery Ward Co. v. Johnson,209 Mass. 89. 95 N.E. 290. In 23 R.C.L. 1282, § 97, the principle is thus stated:
"An offer which is capable of being converted into a contract of sale by an acceptance must be made under circumstances evidencing an express or implied intention that its acceptance shall constitute a binding contract. If a proposal is intended merely to open negotiations and to solicit offers or tenders on the part of the other party, it is not an offer the acceptance of which will impose on him the obligation of a binding contract, and it is generally held that the mere statement of a price at which property is held is not an offer to sell which may be turned into a binding contract by an acceptance. * * * In its final determination the question seems to be one of intention of the parties, and, being such, it depends upon the facts of the particular case."
The rule announced is applied in section 98, Id.:
"Where one merchant wrote to another that he was authorized to offer a certain commodity at a certain price, it has been held that the letter was in the nature of an advertisement or circular to attract the attention of those interested in the commodity, to the effect that good bargains could be had by applying, and not an offer by which the writer was to be bound if accepted for any reasonable amount the person to whom it was addressed might see fit to order. So a letter requesting the addressee to `kindly advise us by wire Monday if you can use 1,500 creosote barrels between now and January 1st, at ninety-five cents each, delivered in carload lots' has been held to be a trade inquiry sent out by the writer to its customers, and not to purport nor to be intended to be a legal offer binding on acceptance. Likewise it has been held that a letter stating that `I have about eighteen hundred bu. or thereabouts, of millet seed, of which I am mailing you a sample. This millet is recleaned and was grown on sod and is good seed. I want $2.25 per cwt. for this seed f. o. b. Lowell,' was not an offer to sell."
If we adopt the rule of construction that the question of intention controls, we are driven to the conclusion that Priddy did not intend to offer his lease absolutely for $5,000 per acre, or he would not have reserved the right to change or withdraw all prices without notice. An offer subject to such a right is incapable of being converted into a contract by a bare acceptance. Chunn v. Evans, 15 Ga. App. 57, 82 S.E. 631; Cox v. Denton, 104 Kan. 516, 180 P. 261; Stein-Gray Drug Co. v. Michelson Co. (Mun. Ct.) 116 N.Y.S. 789; Posposia Coal Co. v. Nye-Schneider-Fowler Co., 106 Neb. 4, 182 N.W. 586; 6 R.C.L. "Contracts," p. 600, § 23; 23 R.C.L. "Sales," § 96; 35 Cyc. p. 50.
A price is as essential as any other term of a contract, and, unless this term is made definite by the offer, an acceptance thereof does not bind either party. 6 R.C.L. "Contracts," pp. 648, 649, § 62; State v. Press Association, 159 Mo. 410, 60 S.W. 91, 51 IL.R.A. 151, 81 Am. St. Rep. 373; Kelly v. Thuey, 143 Mo. 422, 45 S.W. 300. Quoting from the text of 24 A. E. Enc. of Law (2d Ed.) p. 29, we find this declaration of the rule:
"The offer must be distinct as such, and not merely an invitation to enter into negotiations upon a certain basis. If it contemplates the arrangement of other conditions, it is a mere proposal to enter into an agreement, and does not become binding upon an acceptance. Advertisements, quotations, price lists, etc., fall within this class, and are not technical offers."
This is the rule even though the list is given to a definite person. 13 C.J. 228, § 96. In the case of Lucas v. Patton, 49 Tex. Civ. App. 62,107 S.W. 1143, an offer to sell was connected with the qualifying phrase, "I may be willing to take," and it was held that it not only showed no intention to make a binding contract, but that the seller reserved to himself the right to refuse. See J. B. Watkins Land Mortgage Co. v. Campbell, 100 Tex. 542, 101 S.W. 1078; Donnell v. Currie Dohoney, 62 Tex. Civ. App. 134, 131 S.W. 88; Waco M. E. Co. v. Allis-Chalmers Co., 49 Tex. Civ. App. 426, 109 S.W. 224; Parker v. Naylor (Tex. Civ. App.) 151 S.W. 1096; L.R.A. 1915F, 824, note.
I dissent for the further reason that Brasher was neither expressly nor impliedly authorized to represent Priddy in selling or listing the lease for sale. Both Priddy and Brasher testified that the latter had no express authority, and this is conceded by the majority opinion. It is uncontroverted that Brasher *Page 152 was only a bookkeeper in Priddy's office; that he owned no interest in the lease itself, but had only a contingent interest in any profits which might result from a sale; that the printed list recited that the leases were owned by Priddy; and that Childers made no inquiry of Priddy as to final prices or the authority of Brasher until he brought his proposed purchasers to Priddy himself. Childers testified that he went to the office the first day for a listing, and that Brasher gave him a list on this particular lease at $5,000 per acre, agreeing to pay 10 per cent. commissions. His testimony is somewhat confusing with reference to what was done by him the following day. He said:
"I worked on it that [the first] day and did not sell it. The next morning I went back for a verification on the same piece of property, and he [Brasher] verified the same listing. I saw Mr. Brasher. He verified the same listing. I went down and met Judge Brooks and other parties who wanted a proposition and described the property, and before I took them up to the office I went to the office again for a verification on this sale which I got from Mr. Brasher."
When asked about the printed list, he said:
"On that printed price list there was a stipulation written across the top of it, but it said, `Subject to change without notice.' I saw that the second time that I was there. I saw those words written across it. With reference to how long it was from the last or third time that I was in the office to get a verification until I brought Judge Brooks and the other parties up there, it was not over 30 minutes at the outside — just as soon as I could go from his office down to the hotel and take them up there. During this time I never saw Mr. Priddy."
It is apparent from this testimony that he made three visits to Priddy's office for the purpose of having the price verified before he carried his purchasers up for the purpose of consummating the deal, and it seems clear that he saw the list upon his second visit, if not sooner. A stipulation appears in the statement of facts to the effect that the purchasers were ready, willing, and able to purchase at the price of $5,000 on April 26, 1919. Admitting that this is the date when he carried his purchasers to Priddy's office, it does not show that they were ready, willing, and able to take the lease at that price, prior to the time of their interview with Priddy. Even if we accept Childer's theory of the case that Priddy did not have the right to change the price after he brought the purchasers into the office, the burden is upon him to prove that such purchasers were ready, willing, and able at the very time he carried them up to the office on his fourth visit. This he has wholly failed to show. I do not concede, however, that if they had shown their willingness Priddy could not have, nevertheless, changed his price or refused to sell at all. If they went to his office for the purpose of taking the lease at $5,000, it would, under the authorities hereinbefore quoted, I think, have simply been an offer to buy at that price, which could have been accepted or rejected by Priddy. We should presume from the fact that Childers made frequent visits to Priddy's office for a verification of the price that he fully understood that the price stated upon the list was not definite and final, and that Priddy had reserved the right to change it at any time. It is a practical construction by him of the effect of the printed list, which should be binding upon the court. Neither can I agree with the majority in the holding that the assumed agency of Brasher is sufficient to bind Priddy or that the latter has, by his conduct, in any way estopped himself from denying Brasher's authority. Brasher's statement to Childers that he owned an interest in the lease and that the price was still $5,000, made in Priddy's absence, cannot bind the latter. Brasher was neither a partner nor a cotenant in the ownership of the lease.
"The authority of an agent and its nature and extent where these questions are directly involved can only be established by pressing it to its source in some work or act of the alleged principal. The agent certainly cannot confer authority upon himself or make himself an agent merely by saying that he is one. Evidence of his own statements, declarations, or admissions, made out of court, therefore (as distinguished from his testimony as a witness), is not admissible against his principal for the purpose of establishing, enlarging, or renewing his authority, Nor can his authority be established by showing that he acted as agent or that he claimed to have the powers which he assumed to exercise." 1 Mechem on Agency (2d Ed.) § 285.
"The agent's authority, moreover, may not be shown merely by proving that he acted as agent. A person can no more make himself an agent by his own acts than he can by his own declarations or statements." Id. § 289.
Aside from his own statements and acts, upon which the majority opinion seems to be based, I am unable to find anything in the record which tends to show that Childers could lawfully conclude that Priddy had clothed Brasher with authority to do more than hand out and mail the printed price-list. Even the stenographers in the office had this authority. The list expressly states that Priddy is the owner of the leases. As a matter of law a general agent has no authority to do any act toward the sale of his principal's real estate. According to the uncontradicted testimony, Brasher was bookkeeper, with no power beyond the duties incident to his employment. Practically all the authorities agree that a real estate broker is not a general, but a special, agent, with limited authority, and declare that one dealing with him does so at his peril and must inform himself as to the powers of such *Page 153 agent. 2.C.J. 525, §§ 26, 27; 1 Mechem (2d Ed.) §§ 799, 742; 9 C.J. 510, § 7; Swift v. Erwin, 104 Ark. 459, 148 S.W. 267, Ann.Cas. 1914C, 363: Halsey v. Monteiro, 92 Va. 581, 24 S.E. 258.
The jury's finding that Brasher owned an interest in this particular lease is unsupported by a scintilla of testimony, and the further finding that he was authorized by Priddy to place the land with appellee for sale at $5,000 per acre has no foundation in the record aside from his own declarations and acts. The latter finding, being unsupported by the facts, is therefore an erroneous conclusion of law, necessarily based upon the legal effect of the price list as an offer to sell. In so finding the jury assumed the prerogative of the court. In my opinion the propositions insisting that the evidence is insufficient to sustain a judgment for the plaintiff should be sustained as to Priddy.
For the reasons stated, I respectfully dissent.