Johnson v. Fecht, 185 Mo. 335

Johnson v. Fecht

185 Mo. 335 | Mo. | 1904

MARSHALL, J.

This is a proceeding at law to recover four hundred and fifty dollars, damages for alleged breach of contract between the plaintiff and the deceased Lorenz Feger. The claim was presented for allowance against the estate of Lorenz Feger, of which the defendant Fecht is the administrator, and was afterwards appealed to the circuit court of Audrain county, and there tried, resulting in a judgment for the plaintiff for two hundred and twenty-five dollars, from which the defendant appealed to the St. Louis Court of Appeals, where the judgment was reversed, without remanding the cause; but one of the judges of that court being of opinion that the decision therein was in conflict with the decision of the Kansas City Court of Appeals, in Black v. Crowther, 74 Mo. App. 480, the cause was certified to this court, where it now stands for adjudication as in cases of original appeals *340to this court. [Amendment of 1884 to Const., sec. 7.]

The case has been ably briefed and argued by counsel, and the opinion of the learned judge of the St. Louis Court of Appeals is so full and complete as to make the labor of this court very light in this case.

The facts are fully reviewed and the laws are. ably discussed by the St. Louis Court of Appeals (Johnson v. Fecht, 94 Mo. App. 605), and that opinion, as well as the opinion of the Kansas City Court of Appeals with which it is- said to be in conflict (Black v. Crowther, 74 Mo. App. 480), must be read in connection with this opinion.

Briefly stated, the facts in judgment here are these:

Lorenz Feger owned a farm in Audrain county, comprising about one hundred and twenty-eight and onéhalf acres. A public road ran through the farm, leaving eighty-eight and one-half acres on the north side of the road, and forty acres on the south side of the road. In December, 1899, he gave Hopkins and Ricketts, real estate brokers in Mexico, verbal authority to sell the land for him for four thousand dollars. His health being then poor, he went to a sanitarium in St. Louis for treatment. Hopkins and Ricketts sold .the eighty-eight and one-half acres, lying north of the road, to one Hill for three thousand dollars and notified Feger thereof. Instead of writing direct to the agents in answer to their letter, Feger on December 31, 1899, wrote to his nephew, William Dawson, who' lived in Audrain county, saying that he had a letter from Hopkins and Ricketts telling him that they had a buyer for the eighty-eight and one-half acres, for three thousand dollars, and directing him to go to them and have them sell. On receipt of this letter Dawson went to see Hopkins and. Ricketts, with the result that they made out a deed from Feger to Hill for the eighty-eight and one-half acres and sent it to Feger to be executed. He exe*341cuted it, and sent it to Hopkins and Ricketts, but they sent it back to him to be re-acknowledged, which he did, and sent it back to them. In this first letter aforesaid the testimony shows that there was also enclosed a letter from Peger to Hopkins and Ricketts. This letter was shown to be lost, but its contents were shown by parol evidence to be, in substance, “I am glad you have sold the eighty-eight acres; now sell the forty.” Accordingly, on January 5,1900, Hopkins and Ricketts sold the forty acres to the plaintiff herein, for one thousand dollars, of which fifty dollars was then paid to them, and they executed and delivered to the plaintiff a receipt therefor, which recited the sale, the purchase price, the name of the purchaser, and a full description by metes and bounds of the forty acres. On the same day Hopkins and Ricketts wrote to Peger, at St. Louis, saying: “Wp have sold the forty acres on the south side of the road. for one thousand dollars. This completes the sale of the whole tract for four thousand dollars,” etc. The name of the purchaser was not stated, and the above was the only description of the land given. The letter ■ asked whether they should send him a deed for execution or whether he would be at home in a few days. In answer they received a letter dated St. Louis, January 6, 1900, addressed to them saying: “I am just in receipt of your favor of the 5th inst., regarding the sale of the forty acre .tract. In reply would say as follows: Have deed made out and send to me for signing, as I can not say definitely when I will return to Mexico,” etc. ' The parol testimony shows that this letter was written and Peger’s name signed thereto by a man named Lee, with whom Peger was intimate at the • sanitarium. Lee testified that he wrote it at Peger’s request, as his amanuensis, and signed Peger’s name to it at his direction, ■ and then read it over to Peger before mailing it, as he likewise did other letters for Péger, he being sick. On January 8th, Hop*342kins and Ricketts wrote to Feger, saying, inter alia, that they enclosed a deed for him to execute to the forty acres, and that the purchaser wanted an abstract of the title, and as they had turned over the abstract to the whole farm to Hill, the purchaser of the eighty-eight and one-half acres, they would make an abstract ■ to the forty acres, for half price.

Feger never executed the last-named deed, nor did he answer the letter enclosing it, but without any notice to Hopkins and Ricketts, on January 16, 1900, he sold the forty-acre tract to his wife’s nephew, the defendant Fecht. Shortly afterwards Feger died, and this proceeding was begun against his estate to recover the fifty dollars and also four hundred dollars damages for breach of contract of sale.

Two questions are presented for adjudication: First, had Hopkins and Ricketts written authority to bind Feger to the contract of sale to the plaintiff so as to answer the requirements of the Statute of Frauds, in this State; second, if they had not, did Feger ratify < their unauthorized contract of sale to the plaintiff?

Had Hopkins and Ricketts written authority to bind Feger to the contract of sale to the plaintiff, so as to answer the requirements of the Statute of Frauds? The controversy here involved arose since the passage of the act of 1887 (Laws 1887, p. 195), which is now section 3418, Revised Statutes 1899,'and therefore it is controlled by that law.

Prior to the passage of that act it had been held in this State that the authority of an agent to sign a contract for his principal for the sale of land need not be in writing, but might be conferred by parol. That statute was an amendment to the Statute of Frauds by adding to the then existing law. The law then provided that no action should be brought to charge any person upon any contract for the sale of lands, unless *343the contract was in writing ‘ ‘ and signed by the party to he charged therewith, or some other person thereto lawfully authorized.” The amendment added the words, “And no contract for the sale of lands made by an agent shall he binding upon the principal unless such agent is authorized in writing to make such contract. ’ ’

Since the passage of that amendatory act, it has uniformly been held that it is necessary to show that the agent had written authority “to make the contract which he does make.” [Hawkins v. McGroarty, 110 Mo. 546; Roth v. Goerger, 118 Mo. 556; Fox v. Courtney, 111 Mo. 147; Greening v. Steele, 122 Mo. 287.]

There is no serious controversy as to this feature of this case. But it is said that the written authority” shown in this ease does not measure up to the requirements of the Statute of Frauds, in this, that it consists solely of the lo.st letter that Feger wrote Hopkins and Ricketts when he returned to them the first defectively acknowledged deed to Hill for the eighty-eight and one-half acres, and that said letter only said:- “I am glad you have sold the eighty-eight acres; now sell the forty, ’ ’ and that the land to he sold is not described specifically enough on its face to he identified, nor is there anything on its face which refers to any other description which makes it specific enough for identification by such other written extrinsic evidence.

In Fox v. Courtney, 111 Mo. l. c. 150, Macfarlane, J., spealdng for this court, referred to the rule laid down by Browne on the Statute of Frauds, and stated also in Fry on Specific Performance of Contracts, to the effect that the writing required by the . statute, “must contain the essential terms of the contract, expressed with such a .degree of certainty that it may he understood without recourse to parol evidence to show the intention of the parties,” and that, “it must, of course, appear from the memorandum what is the subject-matter of the defendant’s engagement. . Land, *344for instance, which, is purported to be bargained for, must be so described that it may be identified.”

The learned judge then added: “While this certainty is re'quired, the identification may sufficiently appear by reference to ‘an external standard, and need not be in terms explained. ’ Thus a reference to deeds, conveying the same property, may be sufficient. But it will be found that the description of the land, when the subject-matter of the contract, must appear in the contract itself or from some reference in the contract to external matters by which it can be identified by extrinsic evidence. The description cannot be altogether supplied by parol. ‘The writing must be a guide to find the land, must contain sufficient' particuTars to point out and distinguish the tract from any other.’ ”

Accordingly an agreement in writing whereby the defendant had agreed to purchase of the plaintiff “ground lying between Missouri avenue and Sixth street on the east side of Grand avenue,” at a price therein stated, was held to be insufficient to bind the purchaser under the Statute of Frauds.

Tested by this rule, the letter aforesaid, which simply said: “I am glad you sold the eighty-eight acres; now sell the forty,” is wholly insufficient to constitute such a written memorandum of the contract of sale as would have bound Feger under the Statute of Frauds if he had signed it in person.

' ' This being true, it logically and irresistibly follows that under the act of 1887, in order to bind the principal by the contract of his agent it must be shown that the authority given to the agent was in writing and was such authority as authorized the agent, in the language of the statute, “to make said contract,” meaning the contract sought to be enforced against the principal, or, in the language of' this court in Hawkins v: McGroarty, supra, “to make the contract which he does make.”

*345It would be solecism to hold that the principal would not be bound if he signed the contract himself, but that he is bound by the signature of his agent whose authority was no more specific than the contract upon which the principal could not be bound.

The written authority was wholly insufficient to identify the forty acres intended to be sold. And although both the principal and the agent may have understood that “it was the forty acres of the principal’s farm that lay south of the road, that fact lies wholly outside of the written authority and connot be added to it by parol. As was said by Sherwood, J., in Boyd v. Paul, 125 Mo. l. c. 14, “where your memorandum under the statute is scant in measure you can not piece it oiot by verbal additions.”

It follows that Hopkins and Ricketts had no such written authority to make the contract of sale to the plaintiff as is required under the Statute of Frauds to bind Feger.

II.

The only remaining question is, did Feger ratify the. contract made by Hopkins and Ricketts ?

In Hawkins v. McGroarty, 110 Mo. 546, the act of 1887 was considered by this court, and it was held that as the authority of the agent to bind the principal must, under that act, be in writing, so a ratification by a principal of a contract made by an agent who had no such written authority, must also be in writing, except where the principal was shown to have been guilty of such conduct as amounted to an equitable estoppel, which was held to be wanting in that case, as it is also in this case.

In that case, Brace, J., speaking for' this court, said: ‘ ‘ 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 *346to bind him, citing Story on Agency (9 Ed.), sec. 242, and Despatch Line v. Mfg. 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 authority in the first instance, there can be no valid ratification except in the same manner.’ ”

The learned judge then pointed- "out that at common law where a contract was required to be under seal, the authority of an agent to make such a contract was required to be under seal. And it was further pointed out that it is held in other jurisdictions that where the authority of an agent to act was required to be in writing, a ratification of an act of an agent not so appointed, must also be in writing. And accordingly it was held that as our statute requires the authority of an agent to bind a principal to a contract for the sale of lands to be in writing, so a ratification of the act of an agent not so authorized must be in writing. The same rule was laid down in Roth v. Goerger, 118 Mo. 556.

The written ratification relied on in this case is the letter of Hopkins and Ricketts to Feger dated January 5, 1900, in which they said: “We have sold the forty acres on the south side of the road for one thousand dollars. This completes the sale of the whole tract for four thousand dollars,” and.asking; whether they should send him a deed to be executed or whether he would soon be home, and Feger’s reply to Hopkins and Ricketts dated January 6,1900, saying: “I am just in receipt-of your favor of the 5th inst., regarding the sale of the forty acre tract of land. In reply would say as follows: Have deed made out and send to me for signing, as I can not say definitely when I will be able to return to Mexico.”

WThat is hereinbefore said with reference to. the certainty required in conferring written authority *347upon an agent applies with equal force to a ratification. As so measured the ratification relied on fails to fill the requirements of the law.

In addition to this, when Hopkins and Ricketts sent Feger a deed to be executed they notified him that the purchaser, the plaintiff herein, whose name for the first time was disclosed, wanted an abstract of the title, and as they had given the abstract to Hill, they would make another for half price. This varied the terms of the sale, and required Feger to pay for making the abstract of the title, and diminished by that much, the one thousand dollars, which were to be paid for the land. Feger was not obliged to carry out any such altered contract. Yet it is sought in this action to make his estate liable for damages for not so doing.

The Court of Appeals reached the right conclusion in this case and proceeded upon correct principles of law. The case of Black v. Crowther, 74 Mo. App. 480, did not involve the same questions that are adjudicated in this ease. That case was whether a parol acceptance by the principal of a written proposition to buy or .sell an interest in land was good, in a case where the acceptor brought suit for damages for breach of contract by the other party who had signed the written proposal. That case therefore has no bearing upon this case, and need not be further considered here.

For these reasons the judgment of the circuit court is reversed.

All concur, except Robinson, J., absent.