Millard v. Smith, 119 Mo. App. 701

Millard v. Smith

119 Mo. App. 701 | Mo. Ct. App. | 1906

BLAND, P. J.

(after stating the facts). — 1. Plaintiff objected to the introduction of the contract of March 3, 1903 (copied in the statement). The court sustained the objection, thereby cutting up the defense by the roots, as there is scarcely any evidence, outside of this contract, showing or tending.to show that Thomas Millard was the authorized agent of the plaintiff to sell the property. The contract is a two-fold one. It gave Thomas Millard an option to buy the entire property at a price not less than ten thousand dollars, at any time within five months from the date of the contract, and also conferred on him the exclusive right to negotiate *710a sale of the property at any time within the five months, to whomsoever he might. Plaintiff objected to the contract as evidence, on the ground that she signed it as executrix of her husband’s will and not in her individual capacity. At the death of her husband, his estate in the whole of the property passed to plaintiff and Thomas, Homer and Herbert Millard under the will. The property was not a part of the estate, and hence not a subject-matter concerning which plaintiff, as executrix, could contract; and from the mere fact that plaintiff signed the contract as executrix, it will not be presumed that she intended to make a nude agreement. The description of herself as executrix is nothing more than descriptio personae, and she is individually bound by the contract. To hold otherwise would be to hold that she did a useless thing for no purpose, whereas the evidence clearly shows that she intended that Thomas Millard should have an option, for a period of five months, to buy her interest in the property himself or negotiate a sale to any other person, at a price not less than that named in the contract. Plaintiff confirmed the sale made by Millard by receiving the proceeds and executing and delivering a deed conveying her interests in the property, and it seems to us she is in no position to deny the agency of Millard. [Breckinridge v. Ins. Co., 87 Mo. 62; Gentry v. Ins. Co., 15 Mo. App. 215.]

Plaintiff further insists that the contract contains no authority to Millard to sell her separate interest. It is true, the contract provides for a sale of the entire property and, according to the evidence, the entire property was sold, all of it going to the corporation agreed to be organized at. the time L. X. Smith bought the individual interest of plaintiff; and .as the whole includes all the parts, and as plaintiff could bind no one but herself, regarding the sale of the property, and as she accepted a. sale of her separate interest, we think this point is put entirely out of the case, and conclude that the *711learned trial judge erred in excluding the contract as evidence.

2. Plaintiff cites Bank v. Looney, 63 Am. St. Rep. 830; Bash v. Minnesota Title & Trust Co., 163 Mass. 574; and Hoyer v. Ludington, 100 Wis. 441, as holding a sale or conveyance procured through false representations of an agent, without the participation or knowledge of the principal, as binding on the purchaser and the purchaser cannot rescind the sale or defend against the principal for the purchase price because of the fraud of the agent.

In Bank v. Looney, supra, it was correctly held, that one induced to purchase property by misrepresentations made by a third person, other than the vendor and for whose acts the vendor is not responsible, is bound by the purchase and cannot avoid notes given by him for such purchase. The case of Nash v. Title & Trust Co., supra, is not at all in point. In the Wisconsin case, it was held: “One who employs an agent to sell a particular tract of land is not responsible for false representations made by such agent respecting the organization and stock of a corporation formed to purchase the land, with which the principal has nothing to do.” The vendor was not hound by such representations, for the reason they were not made respecting the subject-matter the agent Avas authorized to sell. In the course of the discussion, at pp. 444-5, the court said: “There is no doubt of the general proposition that, if an agent is employed to effect the sale of lands for his principal, and he does so by means of false representations in respect to the land conveyed, even without the authority or knoAvledge of his principal, the latter is chargeable with such fraud in the same manner as if he had known or authorized the same.” And this is unquestionably the law.

3. The court gave the following instruction for plaintiff:

*712“The court instructs the jury that, although you may believe from the evidence that Thomas F. Millard was the agent of plaintiff for and in the sale of the ginseng and property mentioned in defendant’s answer, yet, if you further find from the evidence that the representations of said Thomas F. Millard to defendant L. X. Smith,- as to the number, ages, quality and condition of said ginseng were mere estimates and were made as such —and defendant L. X. Smith was so informed as to the source and information upon which such estimates were made, then you should find the issues for the plaintiff.”

Defendant insists that there is no evidence on which to base this instruction. We are of a contrary opinion. Numerous letters of Thomas Millard to L. X. Smith, written prior to the sale, show that Millard had no personal knowledge of the number, ages, etc., of the ginseng plants in either of the gardens, and in his letters to Smith, whenever he mentioned the number, ages, etc., of the plants, he was careful to state that his estimates were from estimates made by his brother, Homer, who, it seems was in charge of the gardens at the time.

For error in excluding the contract of March 3, 1903, as evidence, the judgment is reversed and the cause remanded.

All concur.