Briggs v. Munchon

Sherwood, Judge,

delivered the opinion of the Court.

Action to recover of defendant the amount bid by him, at auction sale, for lots 1 and 2 in block 3 of the Briggs’ estate, in St. Louis County,'Missouri. Belt & Priest were the auctioneers, and at the trial, the plaintiffs, having established its 'authority, read in evidence so much of a book kept by them, as contained the entries of sales made by them on the 29th day of September, 1870, and especially the entry of the sale of the lots alleged to have been sold to the defendant.

The book was entitled: “Auction Sales, Belt & Priest, 1869, 1870.” The particular entry was as follows : “Thursday, September 29th, 1870. Briggs estate. Positive and unrestricted sale of lots for non-resident heirs. Sold for account of John Biggin, Jr. September 29,1870. On the premises. We are directed by the heirs of the Briggs estate, to sell at public auction, on the premises, all the lots belonging to said estate unsold. This subdivision is situated on both sides of the Clayton road, a short distance west of the intersection of the Clayton and Manchester roads, about half a mile west of the city limits, and a short distance north-east of the Laclede race track subdivision. There are about 150 lots, 25 by 150 feet, fronting wide streets and alleys. The terms will be one-third cash, balance in one and two years, with six per cent, interest. The title is perfect; warranty deeds will be given. The horse .railroad from Summit Avenue and Market Street to Shaw’s Harden, will be in operation in a short time, affording easy access to the property from the center of the city. The beautiful location, and the accessibility of this property, recommend it to all seeking suburban lots. Lithograph *471 plats are now being prepared, and will' be ready for distribution on the 15th inst. Belt & Priest, 219 Chestnut Street. Block 3, lot 1 and 2. C. W. Munchon, 111 $15.00,—$1665,00.”

The above recited advertisement of Belt & Priest, was pasted in their book on the morning- of the day of sale, and the written memorandum, as to John .Biggin, was written before the sale occurred; and that as to whom the lots were sold, and price, etc., were written therein on the same day, and at the time of the occurrence of the sale, by the clerk of the auctioneer. The sale took place at the time advertised, and defendant, who lived within a short distance of- the property, and owned land adjoining the Briggs estate, was present on the ground where the lots were being sold, bid on them, and they, after a considerable contest, were stricken off to him at the price above indicated.. Plats of the lots to be sold were circulated at the time of the sale, and the terms thereof were announced prior thereto orally, also by the advertisements in the papers and by hand-bills posted on the property. It was averred in the petition and not controverted in the answer, that the lots in question were the property of the plaintiffs, situate in St. Louis County Missouri, and were part of the “subdivision known as the Briggs Estate, according to the report and plat of the commissioners in partition, in the case of Edmond B. Briggs, et al., ex parte., recorded in the office of the recorder of deeds for said county, in book No. 321, page 146,” etc. Nor did the answer deny the allegations of the petition to the effect that Belt & Priest were the agents of the plaintiff, duly authorized by her to make the sale referred to. The agency of Belt & Priest was also established during the progress of the trial, and also that the Briggs heirs owned separate interests which had been allotted to them in severalty, by the commissioners appointed for the purpose of making partition of the estate among those entitled.

Marions objections to the introduction of the memorandum of sale were urged by the defendant, who still insists that those objections were tenable, and should have prevailed. John Biggin’s connection with the sale and the cause of his *472 name appearing in the margin of the page which evidenced that sale, was sufficiently and satisfactorily accounted for by the testimomy of Eiggin himself, drawn out by the 'defendant on cross-examination. It seems that the heirs had agreed to give Biggin all that the property would bring above a certain figure, he to defray the expenses of the sale, and to make good any deficit which might occur. This testimony having-been elicited by defendant, he cannot complain if it had a seeming tendency to vary, explain or control a written instrument by parol evidence. But it is not true in point of fact, that the memorandum shows on its face an agreement with Biggin and not with plaintiff. The idea of plaintiffs being the contracting party is not, by any means, at variance with the idea that Eiggin was, on the occurrence of a certain contingency, to receive a portion of the proceeds of the sale. Nor do the words employed, themselves indicate, if they are fairly construed, that he occupied the attitude of contractor.

This disposes of the defendant’s first objection. The second and third objections may be disposed of together. There was no necessity for the name of the plaintiff to appear in the memorandum, and this is the case, notwithstanding that the statute of frauds, as a general rule, requires the names of both the contracting parties. (Brown on Stat. Fr., § 872.) Belt & Priest, as before seen,were by the pleadings admitted to be the agents of the plaintiff, and violence must be done to all fair and reasonable rules of construction in the attempt to-show that the advertisement, which was incorporated into and became a part of the memorandum itself, did not d isclose in a very evident manner, their agency. And to prove who their principal was, resort was even allowable to parol evidence; such resort had no tendency in contravention of the rule forbidding the introduction of extraneous evidence of that sort in certain cases. In Higgins vs. Senior, (8 Mees. & Welsb., 844) Baron Parke said: “ There is no doubt, that where such an agreement is made, it is competent to show that one or both of the contracting parties were agents for other persons and acted as such agents in making the contract, so as to give *473 the benefit of the contract on the one hand, and to charge with liability on the other, the unnamed principals, and this, whether the agreement be or-be not required to be in writing by the statute of frauds, and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind, but shows that it also binds another, by reason that the act of the agent, in signing the agreement in pursuance of his authority, is, in law, the act of the principal.” (See to the same effect, Trueman vs. Loder, 11 Adolph & Ell., 589; Ford vs. Williams, 21 How., 287 , and cases cited; Higgins vs. Del linger, 22 Mo., 397 .)

And it is but a legitimate corollary from the above enunciated rule, which permits an undisclosed principal to avail himself of the contract made by his agent; and. maintain action thereon, although the contract be written, and the evidence, adduced to disclose the relation which the apparent bears to the real principal, is parol. (Bateman vs. Phillips, 15 East., 272; Bro. Stat. Fr., § 373.)

These observations, in full accord with the the above cited authorities, effectually remove any ground of objection because of the non-appearance of the plaintiff’s name in the memorandum, and because of the employment therein of the term, “heirs of the Briggs estate.” Eor if the admissibility of parol evidence to disclose an unknown principal be granted, any alleged obstacle or ambiguity vanishes upon its introduction.

This view renders a discussion of defendants fourth and-fifth objections unnecessary. Passing, then, to his last ground why the memorandum should have been rejected, which is, that the description of the property is uncertain and indefinite ; that remaining point will now be examined. And in the course of such examination, we must not be unmindful of the established and admitted facts heretofore mentioned, that the lots concerning which the present suit arose, were part of the “ subdivision known as the Briggs estate;” that partition had been made thereof by commissioners, whose re *474 port and plat, in the ex parte cause of E. B. Briggs and others, was of record in the county where the proceedings for partition were instituted.

In Wiley vs. Robert, ( 27 Mo., 388 ) the memorandum of sale was in these words: “Partition, lands, Louis Robert vs. B. F. Adams. Lot No. 11—274, 80—100 a. Louis Robert, $ 10,50 per a.—2,885.40.” And it was held sufficient; the court observing that “the title of the partition suit being placed at the head of the memorandum of the sale, connected the papers in that case with the memorandum, for the purpose of this inquiry, as perfectly as if they had been specially referred to and made a part of it.” (The doctrine of the case just cited, was afterwards re-affirmed in 31 Mo., 212 , upon the cause coming up here for the second time.)

That case is not distinguishable in principle from the one at bar. Here the advertisement, which was part and parcel of the memorandum, refers, to the lots yet remaining unsold, belonging to the subdivision, of the “Briggs estate.” That such subdivisiomwas well known by that name, and its location and boundaries a matter of record, stands admitted. Greater certainty than this could not, with any show of reason, be demanded. The mention of county and State in the memorandum, would not have aided in the identification of the property sold ; those usual methods of defining the situation of the land sold, are not absolutely requisite. The mode employed in the present instance was, to all intents and purposes, equally efficient and significant. Theplats mentioned in the notice of sale could, under the circumstances, only have reference to the lithographic copies of the one filed in the recorder’s office by the commissioners in partition ; and for this .reason, such copies were admissible in evidence, although, as seen from the foregoing remarks, their admission, the identity of the property having been otherwise sufficiently established, was not, perhaps, strictly necessary. It was competent for the clerk of the auctioneers to write down the name of the defendant in the sale book, at the time the sale took place, and this was a sufficient signature, within the statute. And *475 the act of the clerk in this respect, was that of the auctioneers, and properly declared on as such, so there was no variance between the matters alleged and those proven, and even had there been any variance, the steps pointed out by the statute for taking advantage of it, were not pursued. (2 Wagn. Stat., § 1, p. 1033; 49 Mo., 404 ; 51 Mo., 501 ; see Sm. Merc. Law, 587; Bird vs. Boulter,4 B. & Ad., 443; Emerson vs. Heelis, 2 Taunt., 38; 7 East, 558; Grill vs. Bicknell, 2 Cush., 355 .)

Having discussed all the points in this record which are of any practical importance, and being unable to discover any error, the judgment must be affirmed.

Judge Wagner absent ; the other judges concur.