60 Mo. App. 38 | Mo. Ct. App. | 1894
This is an action for deceit and misrepresentation, whereby it is alleged that the plaintiff was induced to purchase certain real estate conveyed to him by defendant. The answer was a general denial.
The substance of the evidence given.by plaintiff on the trial was that, some time prior to the transaction complained of, he was engaged in the real estate business, and occupied desk room in the office of another real estate agent, Conrad R. Stinde; that Stinde sug
There was a verdict and judgment for the plaintiff for the amount which he paid to discharge the liens on the tax bills, from which the present appeal is prosecuted.
An agent has no power by his acts or fraudulent representations in excess of the apparent scope of the authority given him to bind his principal. Mechem on Agency, sec. 743. In applying this principle to the facts of this case, it becomes material to inquire what was the apparent scope of the authority of the assumed agent. Unquestionably, the only authority conferred arose by implication, since there is no evidence in the record showing any express employment. If, therefore, any agency existed at all, it was an implied one. To support this view plaintiff l’elies upon the fact that he accompanied Stinde to defendant’s office and received
If it be granted, for argument, that a logical inference of employment could be drawn from proof of these facts; the question at once’ arises, what was the apparent scope of the authority thus given. The rule is, that the authority of an agent, whether express or implied, includes the necessary and usual means of executing it with effect; nor can it exceed these, unless the principal has held out the agent as possessing greater powers, or has ratified, after full knowledge, his acts iu excess of authority.
In the case at bar it is not contended that the implied authority of C. R. Stinde was enlarged in either of these methods. It is, therefore, only necessary to inquire what was the actual extent of the authority inferable.
A real estate broker is one employed to negotiate the sale or purchase of real property. His contract as such is complete when he has found a purchaser who is ready, willing and able to buy upon the terms specified, or respond in damages, and has executed a valid written contract to that effect. Hayden v. Grillo, 35 Mo. App. 654; Mechem on Agency, sec. 966. The performance of these duties does not imply, as a matter of law, any authority on the part of a real estate broker to bind his principal by representations as to present or future liens on property offered for sale. As such authority does not arise as a presumption of law from the bare fact of employment, it can only yest in an agent, authorized to act by implication, upon evidence of use and custom to that effect. Whether or not such was the custom of real estate brokers in effecting sales was. a question of fact, and presented a proper issue for
The burden of proof was upon the plaintiff to establish by evidence the elements necessary to recover in this action. Nauman v. Oberle, 90 Mo. 666. He has introduced no evidence whatever tending to show the use and custom of real estate brokers in making representations, such as the one sued on, in effecting sales of land. It is obvious this defect of proof can not be supplied by legal intendment. The conclusion is inevitable- that, if O. R. Stinde made any fraudulent misrepresentation as to payment of sewer bills by defendant, in so doing he acted outside of the apparent scope of any authority inferable under the facts in this record.
Again, it does not clearly appear from the evidence in this record that the construction of the sewer referred to was completed when plaintiff acquired the property. If it was not "finished at that time, he has no cause of action. The charter of this city makes such improvements liens and payable after the /completion of the work and the issuance of special tax bills therefor. In the eye of the law the plaintiff was aware of this provision; in point of fact he might have known of it by the exercise of ordinary prudence and diligence. He could not, therefore, rightfully, rely upon a misrepresentation as to such a matter. As was said by Judge "Wagnee: “If the buyer trust to representations which are not calculated to impose upon a man of ordinary prudence, or if he neglects the means of information easily in his reach, he must suffer the consequences of his own folly and credulity. Dunn v. White, 63 Mo. 186, and citations. The action of the plaintiff in taking the oral declaration of the real estate agent alone as to the payment of a special bill for improvements which either was, or must become, a charge on the prop
Our conclusion is that the judgment herein must be reversed and remanded.