110 Mo. 546 | Mo. | 1892
By an act approved March 19, 1887, the statute of “frauds and perjuries,” section 2513, Revised Statutes, 1879, was amended by adding the following clause, to that section: “And no contract for the sale of lands made by an agent shall be binding upon the principal unless such agent is authorized in writing to make said contract.”
This is an action in the nature of a bill in equity to specifically enforce the written contract of an agent in. the name of his principal for a sale of land made by the agent, not within the terms of such agent’s written authority, upon the ground of a verbal ratification of such sale by the principal after he was informed thereof. In the facts of the case there is no element of equitable estoppel. Plaintiff’s evidence tended at most only to prove that the defendant, when informed by letter of the sale, did not manifest to the agent any disapprobation thereof, but directly thereafter sold to another person.
The trial court ruled that the written authority must authorize the agent to make the contract which he does make, in order to bind the principal, and unless it does so the ratification thereof must be in writing to bind him, citing Story on Agency [9 Ed.] sec. 242, and Dispatch Line v. Mfy. Co., 12 N. H. 205, in which it was held that “a ratification of an act done by one assuming to be an agent relates back, and is equivalent to a prior authority. When, therefore, the adoption of any particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner.”
In Pollard & Co. v. Gibbs, 55 Ga. 45, it was held that “where a crop lien for fertilizers is executed by an agent who acts without authority from the principal, and in his absence, and the lien is under seal, proof of the ratification by the principal must be in writing and under seal.”
In Ragan v. Chenault, 78 Ky. 546, under a statute which provided that “no person shall be bound as the surety of another by the act of an agent unless the authority of the agent is in writing, signed by the principal;” it was held that subsequent verbal ratification would not bind the surety; that to so hold would be to defeat the object of the statute.
In Palmer v. Williams, 24 Mich. 328, under a statute of frauds, the same as our own, before the adoption of the amendment set out, it was held that “ratification, if not made in writing, with due knowledge of the circumstances, could only be made out by such conduct on the part of the principal as would equitably estop him from insisting on his rights. And such an estoppel would not be made out unless defendants had been so far misled by him to their own prejudice, that justice demanded their protection against him. * * * In the absence of any conduct designed or calculated to mislead, mere delay will not deprive an
There is no such bar in ’the facts of this case. Hiemans was authorized in writing by the defendant Maull to sell his property for $1,400. On the ninth of July he sold to plaintiff for $1,300, who paid Hiemans $40 earnest money, and received from him a receipt for that amount on account of the sale. Hiemans says he immediately wrote Maull a letter, and that Maull called the next day, when he explained the sale to him, and he manifested no disapprobation. Maull sold to his codefendant McGroarty on the evening of the eleventh. He testifies that he did not see Hiemans until after this sale, and did not receive his letter until the evening of the day he sold to McGroarty, and did not understand from its contents that his agent had actually effected a sale. However the truth of this matter may be, he never received from his agent the earnest money of the plaintiff; in a day or two, took the check he received from McGroarty for $50, paid by him as earnest money to Hiemans (who collected it), and, directed conveyances to be prepared to McGroarty, which wa,s accordingly done, the balance of the purchase money paid, and the deeds delivered on the twenty-second of July. In the meantime he never, by any act or word of his, gave the plaintiff to understand for ,a moment that he had authorized or ratified the sale made by Hiemans to him; but from the first approach to him, made by the plaintiff, to secure a performance of the contract, steadily refused to recognize, ratify or confirm the same.
Under the statute, as it now reads, requiring written authority for the contract which the agents make, there can be no question, it would seem, that there is no such ratification here as .could, by any. process of reasoning, bind the defendant Maull to specifically
The judgment is affirmed.