46 Mo. App. 603 | Mo. Ct. App. | 1891
The plaintiff’s petition seeks to recover from the defendants $2,700, the alleged difference between the real value of certain real estate, and the price at which the defendants sold it to him. The cause of action is, that defendants, as agents of one J. C. Birge, undertook to sell said real estate to plaintiff, claiming authority to sell it for him at a stated price, while in fact they had no such authority from anyone ; and it rests on the familiar principle that, where one undertakes to enter into a contract as agent for another, and has no authority for so doing, he will be personally bound for the damages resulting from the non-performance of the contract. Upon the trial of the cause before a jury, the plaintiff recovered a verdict for $425, which was fully warranted by the evidence as to amount, if the view of the law taken by the court was correct. The defendants, appealing, assign for error that the evidence adduced warranted no recovery beyond $25 ; that the court excluded legal evidence offered by the defendants, and that it misdirected the jury as to the law.
The plaintiff gave evidence tending to show the following mentioned factor The defendants were real-estate agents in the city of St. Louis, and, as such, published a monthly real-estate price current, stating that no property was advertised therein, unless the exclusive agency for its sale was given to them. Among
“ Office of Fisher & Co., \ S. J. Fisiier, Curves S. Fisher, (. Real Estate, Ño. 714, Chestnut St. j
“ St. Louis, April 29, 1890.
“Received of C. Gestring $25, as earnest money and in part payment of the purchase of lot on Hemp-stead street, north side, one hundred feet east of Broadway, being lot thirty-eight by one hundred and twenty-five in city block 250 north, of St. Louis, Missouri, sold to C. Gestring for the sum of $1,140, or $30 per foot, terms of sale as follows: Cash. Title to be perfect, or no sale. If the title is not perfect, earnest money to be refunded and examiner’s fees paid by us. Taxes of 1890 to be paid by purchaser.
“[Signed] J. C. Birge,
“Fisher & Go.
“ Agents.”
“ I agree to the above.
“[Signed] C. Gestring.”
The plaintiff also gave evidence that Meany, the clerk, before delivering the receipt, told one of the defendants that he had sold this property to the plaintiff, and that said defendant thereupon remarked that he was glad that the plaintiff got it, because, on the first of the month, the owner was going to put it up $10. There was no evidence that either of the defendants saw this receipt before it was delivered to the plaintiff’s son, nor was there any evidence that plaintiff’s son inquired
The following additional fact bearing upon the case also appeared in plaintiff’s evidence, namely, that J. C. Birge had no title to the property when the memorandum of sale was made, but that the title thereto was in Mary C. Birge, his wife, and that the defendants, more than ten days after the exechtion of the memorandum, and when threatened with litigation, wrote a letter to plaintiff containing the following statements:
“As we wrote your attorney, Mr. Rassieur, we regret that we are unable to carry out the agreement which was made with you to sell you lot on Hempstead ■ street. This is the first time, since we located in business in this city, that such a thing has happened ; but, as you were informed of this fact on the day subsequent to this transaction, we cannot see how it is possible that you can be damaged, either directly or indirectly, and, as you must surely know that it was not our purpose to treat you in this way, we cannot see what will be gained by litigation.” * * *
The plaintiff also gave evidence that the market value of the lot in question was at least $400 in excess of the price stated in the memorandum.
The defendants gave evidence showing that they had no written authority, either from J. C. Birge or his wife, the true owner, but had oral authority to sell this lot for $30 per front foot, provided this and another higher priced lot were sold together, and not otherwise. Meany, the defendant’s sale clerk, testified that, prior to the execution and delivery of the memorandum, he stated this fact to the plaintiff ’ s son, to whom the receipt was delivered, adding that, as the firm had no
The defendants asked the court to instruct the jury-as follows: “The court instructs the jury that, under the pleadings and the evidence in this case, the plaintiff is not entitled to recover beyond the sum of $25.”
The court refused so to instruct, but instructed the jury as follows : “The court instructs the jury that, if they find from the evidence that witness Meany was in the employ of the defendants as a salesman of real estate on April 29, 1890, and that a part of his duty, as such salesman, was to receive earnest money on sales, and to execute and deliver contracts in writing of such sales, in the name of the firm of defendants ; and, if the jury further find that, on said day, said Meany did execute, sign and deliver the receipt read in evidence, and that at said time defendants had no written authority from the owner of the real estate therein described to sell the same, and that defendants, within a reasonable time after said date, failed and refused to procure and deliver to plaintiff a deed for said real estate, and that plaintiff, or his agent, offered to comply with the terms of said sale, and demanded a deed, then the jury will find a verdict for the plaintiff, unless you believe and find from the evidence that at, or prior to, the time when said receipt of April 29, 1890, read in evidence, was delivered by said Meany to said John Gestring, he, the said Gestring, knew or was informed that said Meany had no authority to make or execute the said receipt, or knew or was informed that said Fisher & Co. had no written authority to make a sale of said
“Unless you find and believe from the evidence that the instructions spoken of by the witnesses, Fisher and Meany, in regard to the sale of the property mentioned in the writing, dated April 29, 1890, read in evidence, were known or communicated to John Gestring at or before the delivery of said writing by Meany to said Gestring, they cannot affect the rights of the plaintiff in this case, and, in that event, the testimony in relation thereto should be wholly disregarded by you in arriving at a verdict in this case.”
“If the jury find for the plaintiff, they will assess his damages at such sum, if any, as the jury may find from the evidence the reasonable market value of the premises described in the petition, in the first week of May, 1890, was greater than the price fixed by the memorandum of sale, together with the amount paid by plaintiff as earnest money to the defendants.”
We have set out the record thus fully, because it raises some propositions which are seemingly novel. That an agent who undertakes to bind a principal, when, in fact, he has no power to do so, thereby renders himself individually responsible, is an elementary proposition, and it makes no difference whether in so doing - the agent acts in good faith or otherwise. In Smout v. lluwry, 10 M. & W. 1, it is stated that one of the cases rendering an agent thus responsible is, where, not having in fact authority to make the contract as agent, he yet does so under the belief in good faith that such
Now, in the case at bar, the petition charges, that the defendants pretended to have authority f rom one J. O. Birge, under which they agreed in his name to «ell to plaintiff a lot of land belonging to said Birge; that they had no such authority ; that the plaintiff tendered to Birge the purchase money, and demanded of him a conveyance of the lot, which Birge refused to make, etc. The proof offered is in support of the pleadings. The plaintiff claims under the memorandum, which he asserts must be taken as evidence of the sale which the defendants agreed to make to him of the title •of J. C. Birge. The memorandum purports to bind J. C. Birge as principal, and no one else. The statement, “title to be perfect or no sale,” relates to the title bargained for. That condition, it is true, is inserted for the benefit of the vendee, and he may waive it, and the vendee claims that he has waived it by insisting on a ■deed from J. C. Birge, so that giving his evidence the greatest effect, we are ready to concede that he has shown a cause of action. But a different question arises when it comes to the measure of his damages.
In view of the recurrence of other questions which arise upon this record, we deem it proper to make the following additional observations. The plaintiff was justified in assuming from the prospectus published by the defendants, and from their acts in trying to sell this lot to him, that they had legal authority from some one to sell it. If this were a question between the plaintiff and the owner, the law would be different. We also add, what we had recent occasion to s ay in another case, that instructions from the principal to the agent are always admissible in evidence, ánd hence there was no valid objection to the admission of the oral instructions given by Fisher to Meany, although the ruling out of that evidence in view of the subsequent testimony of Fisher which was admitted, could hardly be deemed to be prejudicial error. Where the agent receives instructions, they always form the limit of his authority between himself and his principal. Where the agent is held out to the world as possessing greater authority,
the judgment is reversed, and the cause remanded.