119 Mo. App. 56 | Mo. Ct. App. | 1906
Statement.
In January, 1904, the defendant was the owner in fee of certain real estate, situated in the City of St. Louis, known and designated as No. 5807 Von Verson avenue.' Defendant verbally authorized her son, R. A. Niggeman, to offer the property for sale. On the seventh of Janury, 1904, R. A. Niggeman, as the agent of his mother and in her name, entered into a written contract with the plantiff, whereby it was appointed the agent of defendant to sell the property for $7,750, for which services it was to receive two and one-half per cent commission on the purchase price. It was agreed that defendant’s title was to be perfect and the property free of incumbrances. Plaintiff, in a short time, found a purchaser, Mary L. Griffin, who was ready, willing and able to purchase the property for $7,750, and, on Janury 8, 1904, signed and acknowledged a written agreement, whereby she bound herself to purchase the property at the price of $7,750 and deposited one hundred dollars with plaintiff as earnest money and as part payment of the purchase price. On being informed of the sale, defendant executed and acknowledged a general warranty deed conveying the premises to Mary Griffin and placed the same in the hands of John J. McNeary,
(after stating the facts) — 1. In 1903, the Legislature passed an act, consisting of two sections, the first of which reads as follows:
“In cities of three hundred thousand inhabitants or more, any person who shall offer for sale any real property, without the written authority of. the owner of such property, or of his attorney-in-fact, appointed in writing, or of a person who has made a written contract for the purchase of such property, with the owner thereof, shall be deemed guilty of a misdemeanor and fined*61 in á sum of not less than ten dollars nor more than three hundred dollars.” [Laws of 1903, p. 161.]
It is conceded that defendant did not, in writing’, appoint her son, R. A. Niggeman, her attomey-in-fact to sell or offer for sale her real estate. On this evidence, defendant insists that the contract relied npon by plaintiff to recover was void, and that it was guilty of a misdemeanor in accepting the contract and offering the property for sale, and for these reasons no recovery can be had. Had defendant repudiated the sale when she learned of it, or refused to carry it out, we think there would be no doubt of the soundness of her position; but she did not do this; on the contrary, she ratified the sale and offered a full performance of the contract on her part by executing and tendering a deed conveying title to the property to the purchaser, Mrs. Griffin. It is not immoral to sell real estate, nor is it contrary to any public policy of the state; nor was the statute, supra, enacted for the purpose of hindering or restricting the exercise of the right of the owner to sell his lands by himself, or through his duly appointed agent. This section and the succeeding one are aimed at an evil which was prevalent in the city of St. Louis, to-wit, that of negotiating the sale or the mortgaging of real estate, without the knowledge or consent of the owner, by irresponsible and unconscionable persons acting as real estate agents with the fraudulent intent to make a profit to themselves. The two sections will effectually prevent these frauds, for in a suit to recover commission or other compensation for negotiating a sale or mortgage, if the owner denies the authority of the agent, under the statute, the agent must show his authority in writing from the owner or his attorney-in-fact, appointed in writing. But if the owner acknowledges the authority in the agent to make the sale, or ratifies it after it is made and accepts or offers to accept the benefits arising therefrom, we can see no reason and know of no law that would deny him the right to recover a just reward for his labor; and the
2. Section 24, article 6, of the Scheme and Charter of the city of St. Louis, provides for making out special taxbills for the construction of certain public works, including the construction of district sewers (after the work is completed and accepted). The succeeding section (25) provides that these “taxbills shall be and become a lien on the property charged therewith,” etc.
In Everett v. Marston, 186 Mo. 587, 85 S. W. 540, our Supreme Court, construing the provision of the Charter of Kansas City relating to the same subject and containing substantially the same provisions as section 24 and 25, supra, of the Charter of St. Louis, held that special tax-bills are not a lien on the property chargeable with the cost of the work until they are delivered to the Board of Public Works. Under the St. Louis Charter these special taxbills are required to be delivered to the party in whose favor they are issued. The case is authority for holding that special taxbills are not a lien until they are delivered to the party designated in the charter to receive them, hence plaintiff’s counselor was in error when he gave it as his opinion that the construction work