86 Mo. 178 | Mo. | 1885
— The defendant, Loren S. Allen, at the date of the principal transaction under consideration, was a resident of Chicago. About, or during the year 1868, he became the owner of certain lots in Kansas City, which are the subject of the present controversy. From that date until about the close of the year 1879, one Webster, a real estate agent in Kansas City, was Allen’s agent to look after said property, to pay the taxes thereon and to find him a purchaser therefor, the same being for sale during said years. The plaintiffs, Smith & Keating, were partners composing a real estate firm, residing in and dealing in real estate in Kansas City. About November 1,1879, one Rickard, who was, it seems, also areal estate agent in Kansas City, and acted in this matter in connection with Webster in trying to find a purchaser for Allen’s said lots, opened negotiations .for the sale thereof with said plaintiffs, by telling them that Webster had said lots for sale at and for the price of sixty dollars per foot. Smith & Keating offered Webster, through Rickard, fifty-five dollars per foot, which proposition Webster submitted to Allen, who rejected the same. Webster, a few days thereafter, wrote Allen that he thought these parties offering the fifty-five dollars per foot would give sixty dollars per foot. Thereupon, Allen wrote a letter of date November 19, 1879, which letter is as follows:
“Hyde Park, Nov. 19, 1879.
“Friend Webster: I am sick and not able to write ; your letter received last night; I will leave the sale of the lots pretty much with you; if the party, or any one, is willing to pay sixty dollars per foot, one-third cash and balance one and two years, interest ■seven per cent, per annum, and pay commission of sale, I think I am willing to have you make out a deed and I will perfect it; Í think you have the deeds to those lots,*182 have you not 1 If you think I better try spring market, hold till then; the party buying may want the abstract in full, which I believe I have at Rockford, and will sell much less than cost. The above price is only for the present. Excuse this letter.
“Truly yours,
“ (Signed) L. S. Allen.
“It is understood that if I pay the taxes now due, that hereafter I am relieved from any tax.”
On November 22, Rickard and Webster went to the office of Smith & Keating and submitted to them the said letter of November 19, from Allen. Smith & Keating accepted the proposition, paid the ten dollars mentioned, and took from Webster the following agreement and receipt, which is the contract sued on:
“Kansas Citv, Mo., November22, 1879.
“ Received of Messrs. Smith & Keating the sum of ten ($10) dollars as earnest of the purchase money of one hundred and seventy-two feet on Fourth street, running through to Third street, in block twenty-three, Old Town, now City of Kansas, Missouri, being part of lots-225, 226, 227, 228, 229, and 230, block twenty-three, and the old alley running north and south through said block twenty-three, which price is to be sixty dollars per foot on Fourth street, running from street to street, to be paid one-third cash, and one-third in one (1) and the remaining third in two years, with seven per cent, interest on the deferred payments, secured upon the property. The sale being understood to be null, unless. the title to the real estate is satisfactory to said purchaser.
“L. S. Allen,
“ By Ed. H. Webster.”
Smith & Keating then took and have ever since retained possession of Allen’s letter of November 19. After
“Ed. H. Webster, Real Estate and Loan Broker, ) “No. 603 Main St., V
“Kansas City, Mo., Nov. 22, 1879. )
“Dr. L. 8. Allen, No. 103 State St., Chicago, Ills.:
“My Dear Sir: Your favor, November 19 inst., duly received. I do not like to assume' the responsibility of deciding whether it is best to sell your property now. I should feel inclined, if it was mine, from the class of improvements going in that direction, to sell. I can’t guess whether-it would be better (that is, I can’t determine), to wait until spring or sell now. I have agreed with Messrs. Smith & Keating to take the ground, subject to your, approval, at sixty dollars per foot, upon the terms named in your letter, one-third cash, one-third one and one-third two years, with interest at seven per cent. They do not wish to pay for the abstract, claiming that you should furnish the abstract of title as you already have it. I think this a good price for the present, although it may bring a better price by waiting. Please advise me by wire at my expense.
k“ Yours truly,
“Ed. H. Webster.”
Allen answered the same by the following letter:
“Chicago, Nov. 28, 1879.
“ E. II. Webster:
“Dear- Sir: Yours of date of twenty-second and mailed twenty-sixth, came to me this morning ; and I am undecided about taking the offer of sixty dollars per foot, though think, on the whole, I will take my chances for a spring sale. Perhaps, I miss it, but from the present outlook, I think it will bring more if local prejudices don’t kill the market. I should have answered*184 by wire, but the letter was too old before I got hold of it, and will wait the mail. You will please keep me posted from time to time, and in due time make a sale.
“ Truly yours,
“L. S. Allen.”
Webster replied thereto, as follows :
“Ed. H. Webster, Real Estate and Loan Broker, .)
“No. 608 Main St.,
“Kansas City, Mo., Dec. 6, 1879. )
“Dr. L. 8. Allen, No. 103 Slate 81., Chicago, Ills.:
“ Dear Sir : Upon the receipt of yours, nineteenth ult., I notified a Mr. Rickard (real estate agent) who was negotiating for Smith & Keating for the purchase oi your land on Third and Fourth streets, and gave the letter to him to show to Messrs. S. & K. Within a day or two he came and wanted to pay me something upon the purchase, as he said they wished to take it upon your terms. I told him that I would not receive anything until I saw Messrs. S. & K., and explained to them that I did not pretend to have any authority to sell, except that which was embraced in your letter of the nineteenth of November, which they had in their possession, and that if I accepted a payment, I did not wish them tc say that I was not a man of business if you did not confirm the sale. I called upon them, discussed the matter fully, and accepted ten dollars and made an agreemenl and wrote you letter twenty-second November. Aftei receipt of yours declining, I notified them, but they insist upon the contract and threatened to sue for specific performance of their contract made with me. I think they only wish to try and scare you into making a deed, and am satisfied my contract amounted to nothing.
“ Yours truly,
“Ed. H. Webster'.”
Mr. Ladd testified, that in February or March, 1880, as attorney for Hews, he examined the title to this property and looked over the papers on file in this suit, including the contract now sued on, and that he went to the plaintiff, Keating, and read said letter of date of November 19, and that he afterwards, and about May 3,1880, paid to Allen, for Hews, the balance of the purchase money, which amounted to something over $8,000.
The action is one for the specific performance of said alleged contract, and was begun in the circuit court of Jackson county, February 5, 1880, against the defendant Allen. The petition sets forth the contract as follows:
“ That on said twenty-second day of November, 1879, and for a long time previous thereto, Edward II. Webster, of the City of Kansas, in said county, was the duly authorized agent of defendant; that previous to said twenty-second of November, 1879, to-wit: on or about the nineteenth day of November, 1879, said defendant, in writing, by him duly signed, duly authorized .and empowered the said Webster, as such agent, in the name and stead of defendant, to enter into contract in writing with, and sell to, said plaintiffs the whole of said described real estate, at the price of sixty dollars per front foot, on the terms of one-third cash on delivery of deed, and the remainder in two equal payments, at one and two years, with interest thereon at the rate of seven per cent, per annum; that in pursuance of the power*186 and authority so granted to said Webster, the said Webster, on said twenty-second day of November, 1879, as such agent, in the name- of said defendant, did enter into a written agreement with plaintiffs, whereby defendant, through and by said agent, duly sold to plaintiffs all the aforesaid described real estate, at and for the said price of sixty dollars per front foot, being in the aggregate the sum of ten thousand, three hundred and twenty dollars, payable as follows: one-third, to-wit: three thousand, four hundred and forty dollars, cash, upon the delivery by defendant to plaintiffs of a general warranty deed to said real estate ; and one-third, to-wit: three thousand, four hundred and forty dollars, in one year from the date of the delivery of such deed; arid the remaining one-third, to-wit: three thousand, four hundred and forty dollars, in two years from the date of the delivery of such deed, said deferred payments to bear interest at the rate of seven per cent, per annum, and that said defendant was to execute and delivery such-general warranty deed to plaintiffs without delay, .and thereupon they, plaintiffs, were to pay said cash payment and execute their promissory notes for said deferred payments, and a deed of trust on said described real estate securing the payment of said notes, and deliver such notes and deed of trust to said defendant.”
The answer of defendant Allen was filed February 14, 1880, and was a general .denial. Upon motion of Allen, the defendant Hews was made a party defendant, who, on June 16, 1880, filed his separate answer, admitting the ownership of Allen on the said November 22, 1879, and denying all other allegations, and further answering and setting up that he was a bona fide purchaser, for value, of the property in suit and without notice of said alleged contract, which was denied by the replications of plaintiffs. The court found the issues and gave judgment for plaintiffs, and defendants have appealed therefrom to this court.
The letter indicates that Allen does not mean to decide. peremptorily, which course was best to pursue, whether to sell the lots at that time, or to' wait for an advance of market in the spring. On this question he is disposed to defer to the judgment of his agent, Webster, to which we are to ascribe and refer, we think, whatever of doubt may be implied by the language: “I think I am willing to have you make out the deed.” Allen, at the date of the letter in question, was in Chicago, sick and unable to write. Webster, his agent, was in Kansas City, where the property in question was situated; he was a real estate agent and familiar with the value of the lots, the state of the market, and its probable rise or fall. These facts, to some extent, at least, may serve to explain and show why it was that Allen was willing to leave the sale “pretty much” to Webster ; why it was that he thought he was willing to have him “make out” a deed, which he says he “will perfect; ” and, also, why it was that he directed Webster to “hold till spring,” if he thought he had better try the spring market. Why this concluding paragraph to the letter? • It reads: “If you think I had better try spring market, hold till then,” Why tell him to hold •till spring if he had not authorized him to sell before, or thought he had done so? The injunction to hold till spring, if the agent thought best, clearly implies authority in the agent to sell before, if he thought best. This, evidently, was the interpretation Webster pnt upon the
The question then arises, whether an agent of this description, with a power thus conferred upon him to sell, has the power to make and sign such an agreement or memorandum in writing of the terms of sale, so as to be valid and binding upon his principal. Webster was authorized to sell at the price and upon the terms mentioned, and this implied authority to do everything necessary to complete the sale, and to make it effectual and binding. If the principal, Allen, had been conducting the trade in question, it would have devolved upon him (who was the party to be charged) to sign a memorandum or note in writing, evidencing the sale, before a valid sale thereof could have been made. And if it was thus incumbent upon the principal to do this to effect a valid sale, then, w“e think, in the case of an agent, authorized to make the sale, the power to sign such an agreement, either in his own name or in the name of his principal, is necessarily im
A further objection is made, that the terms of the sale prescribed by the letter were one-third cash, and the terms of the contract were ten dollars cash, and that the contract is, therefore, not pursuant to the terms oí the letter. The ten doUars was, as recited in said contract, paid as earnest of the purchase money. Said letter did not contemplate or require that the cash payment of one-third was to be made immediately upon the .terms of the sale being agreed on, but such payment was to be cash, npon the delivery of the deed by Allen, and the delivery of the notes for the deferred payments and trust deed by the purchasers. The agree,ment is, we think, in substantial conformity with said letter.
It is further urged in appellants’ behalf, that the .acts and conduct of all the parties show that no valid .and binding contract was made, and that they did not .consider the written agreement valid and binding. Webster, it is true, wrote to Allen thereafter that he had
Nor do we understand that the defence of said defendant, or of his co-defendant, Hews, is based or founded in any alleged fraud in obtaining said contract, but is based, so far as Allen is concerned, exclusively upon the ground that the contract sued on was never, in fact,' made or authorized. We do not see that the further defence of defendant Hews, viz. : that he was an innocent purchaser for value and without notice is seriously urged or presented. Hews was not introduced as a witness on the trial. Notice of this suit was filed for record and recorded December 6, 1879. Hews bore a letter oí introduction to Allen in Chicago, from Webster, and agreed upon the terms of the sale with him December, 20, 1879, but the sale of the lots, which was to be for cash, was not completed until May 1, 1880, at which time Mr. Ladd, acting for Hews, paid the balance, $8,000, of the purchase money. Mr. Ladd testified on the part of the plaintiffs, that he examined the title for Hews, and, in doing this, examined and read over the papers on file in this action, including the contract of sale, and that he went to plaintiffs’ place of business, and there read over Allen’s said letter of November 19.
Upon the trial, the court found and declared that the agreement, mentioned in plaintiffs’ petition, ought to be specifically performed and carried into execution, inasmuch as defendant Hews, at the time of his purchase, did so with full knowledge of said plaintiffs’ said agreement and the contents thereof, and, therefore, ordered, adjudged and decreed that the title, to the land, mentioned in plaintiffs’ said agreement and petition, be, and the same is, hereby divested out of defendant Hews, and vested in the plaintiffs, Smith & Keating, and it, also, further ordered and adjudged,