Johnson v. Fecht

1. Evidence: ORAL TESTIMONY: LOST INSTRUMENT. Where a letter from a principal to an agent, to sell a tract of land, has been lost, oral evidence is admissible to prove its contents. 2. -: -•: -. Rut evidence that a letter -written and signed in a handwriting other than that of the one whose name was subscribed, came in an envelope containing a deed from the purported writer to another party, was not competent to prove that his writing and signing had been authorized. 3.--: -. A letter to an agent, authorizing the sale of land, which merely referred to it as the “forty-acre tract,” did not sufficiently describe the land to permit it to be identified by extrinsic proof. 4. Statute of Erauds: PRINCIPAL: AGENT: SALE OF LANDS. Under seciion 3418, Revised Statutes 1899, the written authority to the agent to sell land for the principal must be strictly construed and scrupulously followed. 5. -;: --•: ---: EVIDENCE: STATUTORY CONSTRUCTION. An agent wrote to his principal, “We have bold the forty acres on the south side of the road for $1,000.” The principal in his reply, acknowledged the receipt of “your favor regarding the forty-acre tract of land,” and directed the deed to be forwarded for signing. No further description of the land was contained in either letter, nor was the name of the vendee mentioned, nor the fact that the agent had given a contract of sale: Held, that the description was insufficient to confer authority,-under section 3418, Revised Statutes 1899, which provides that “no contract for the sale of land made by an agent shall be binding on the principal unless said agent is authorized in writing to make said contract.” 6. -: - — . RATIFICATION OF CONTRACT. Where an agent, having no authority to sell certain lands, gave a contract of sale of the tract to a vendee, and then wrote his principal that he had sold “the forty acres on the south side of the road for $1,000” hut did not mention the name of the vendee, nor that he had signed a contract of sale in the principal’s name, a letter in reply by the principal, acknowledging the receipt of “your favor regarding sale of forty acres tract of land,” and directing the deed to he forwarded for signing, was not a ratification of the contract of sale, as the principal could not ratify the contract without knowing its full terms.

Appeal from Audrain Circuit Court. — Hon. Elliott M. Hughes, Judge. STATEMENT of the case. Lorenz Eeger formerly lived in Audrain county, where he died on the seventeenth day of January, 1900, and after his death the demand which is the subject-matter of this controversy was presented for allowance against his estate, of which William Eecht is administrator. The demand is as follows: “William Eecht, Administrator of Lorenz Eeger, deceased, Dr., to James T. Johnson. “To damages for failure to convey forty acres of land bought of said Eeger by Johnson, January 5, 1900......$400.00 “To cash paid and not returned on said purchase....................... 50.00 “Total.......................$450.00” Eeger had a farm in Audrain county of one hundred and twenty-eight and one-half acres, of which eighty-eight and one-half acres lay to the north of a road and forty acres to the south. In December, 1889, he was in poor health and went to St. Louis to be treated in a sanitarium. Before going he made a verbal arrangement with Hopkins & Eicketts, real estate brokers in the city of Mexico, to sell said farm for him for four thousand dollars. They sold the portion' north of the road to T. B. Hill for three thousand dollars and notified Eeger, who was at the time in St. Mary’s Infirmary in the city of St. Louis. Eeger wrote a letter to his nephew, by the name of Dawson, who lived in Audrain county, approving the sale as follows: “St. Louis, Dec. 31, 1899. “William Dawson: “Dear Sir: I received a letter from Hopkins & Eicketts, saying they had a buyer for the eighty-eight acres with the building on it, for three thousand dollars. You go to them and have them sell. They want an answer by Tuesday. “Yours truly, (Signed) “L. Eeger.” On this letter being shown to them, Hopkins & Eicketts made out a deed conveying the eighty-eight and one-half acres to Hill and sent it to Eeger. Eeger sent back the deed executed, but imperfectly acknowledged, and it had to be returned to him for re-acknowledgment. This was attended to and when he again sent the deed to Hopkins & Eicketts, he inclosed a letter with it which was lost, but was shown by the testimony of those men to have been written and subscribed with Feger’s name in some one’s else handwriting — whose was not shown; and the only circumstance to show Feger sanctioned it was that it came in the same envelope as his deed. Parol testimony of its contents was received by the circuit court and it was proven to have contained substantially this direction: “I am glad you have sold the eighty-eight acres; now sell the forty.” On the fifth day of January, Hopkins & Eicketts made a contract with the plaintiff, Johnson, to sell him the forty acres for one thousand dollars, of which he paid fifty dollars at the time and they executed the following receipt: “50.00. Mexico, Mo., Januay 5, 1900. “Received of James T. Johnson the sum of fifty dollars, earnest money or first payment on purchase price of the following described real estate belonging to L. Eeger, and situate in the county of Audrain and State of Missouri, which we have this day sold to said James T. Johnson as agents of said L. Eeger, at and for the price and sum of one thousand dollars, to-wit: One and one-half acres in the northwest corner of the southwest fourth of the northeast quarter; twenty acres, the north part of the southeast fourth of the northwest quarter and nineteen acres, being all that part of the sixty-one acres the west part and north part of the north half of the northwest quarter that lies south of the county road, containing in all forty and one-half acres more or less; all in section twenty-two, township fifty-one north, range nine west, of the fifth P. M., and being all that part of the one hundred and twenty-eight and one-half acre tract of land conveyed to said L. Eeger by John S. Smith and wife by warranty deed, recorded in book 55, at page 17, of the Audrain county deed records, that lies south of said county road. Possession to said premises given March 1, 1900. ' (Signed) “Hopkins & Ricketts, “Agents for L. Eeger.” On the same day they wrote this letter to Eeger: “Mexico, Mo., Jan. 5, 1900. “Mr. Lorenz Eeger, St. Louis, Mo. “Dear Sir: 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. We are glad to make this sale, as you seemed to prefer to close out the whole farm. Shall we forward deed to yon there or will you be home iu a few days ? The party would like to close up the deal iu a few days. “Tours very truly, “Hopkins & Eicketts/'’ They received within.a day or so the following answer: “St. Louis, Jan. 6, 1900. “Messrs. Hopkins & Eicketts, Mexico, Mo. “Gents: 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. I sent you the other deed yesterday, properly acknowledged by notary public. Please acknowledge receipt of same and oblige. “Tours respectfully, “Lorenz Eeger.” The last letter was written by a fellow-inmate of the infirmary by the name of Lee, with whom Eeger became intimate while they were in the institution together. Lee acted as amanuensis in writing that letter which the parol testimony satisfies us was written and signed by him in Eeger’s presence, and read over to the latter after it was written. On receipt of it Hopkins & Eicketts sent the following letter to him and inclosed a deed to Johnson for the forty acres of land to be executed : “Mexico, Mo., Jan. 8, 1900. “Mr. Lorenz Eeger, St. Louis, Mo. “Dear Sir: We received the deed to Amanda Hill duly acknowledged. We expected to close the deal Saturday, but tlie roads were in suck, bad condition tkat they could not get in. We will close it up to-morrow, and place tke money in tke Southern Bank to your credit. We find tkat tke taxes are not paid on tke farm for 1897 and 1899, two years. In regard to tke suggestions made by your notary public, will say tkat tke land was deeded to you as L. Eeger, and we made tke deed from you to correspond. That’s all right, however. We inclose deed for you to execute to tke forty acres south of tke road. As soon as deed is returned we are ready to close tke deal. Mr. Johnson wants an abstract to tke land. We turned tke one you kad over to Mr. Hill. We will say to you, in tkis connection, tkat we will make you tke abstract to tke forty acres at half-price, as you already have one to tke whole farm. We hope tkis will be satisfactory to you. Will write you as soon as we get tke Hill deal closed. “Tours very truly, “Hopkins & Ricketts." Feger never executed tke deed to Johnson, but sold tke land on tke sixteenth day of January to William Eecht, wko is kis wife’s nephew and now the administrator of tke estate, without consulting tke agents wko kad made tke sale to Johnson. After Eeger’s death, Johnson presented tkis claim for damages on account of tke failure to carry out tke contract for tke sale of tke land which Hopkins & Ricketts kad made. Tke case went from the probate court of Audrain county to tke circuit court, where there was a judgment for tke plaintiff, from which tke defendant took tkis appeal. Six instructions were given to tke jury at tke instance of the plaintiff, tke purport of all of them being that tke above-quoted letter, dated tke sixth day of January, and written by Lee for Eeger, was a ratification by Eeger of tke contract made by Hopkins & Ricketts with Johnson. Two of those instructions will be quoted to illustrate tke theory propounded : “The court instructs the jury that if Eeger after being notified of the sale made to plaintiff, wrote the letter or authorized the letter dated January 6, 19 00, without any inquiry of the agents, Hopkins & Eicketts, as to the terms of said sale, then said letter is not only a ratification of what Hop-, kins & Eicketts had done as his agents, but it was a ratification of the contract made by them, and is as binding upon him and his estate as if he had made the contract himself, and if you find that said Feger either wrote said letter or authorized the same, then the defendant is liable on the said contract for breach of contract and damages, and you will return a verdict for the plaintiff.” “The court instructs the jury that if you find that the said deceased, L. Eeger, wrote or authorized the writing of the letter dated January sixth and the same was received by Hopkins & Eicketts, then the contract of sale made the fifth of January was ratified, and everything Hopkins & Eicketts had done regarding said sale has become the act of said L. Eeger, and if you so find, you will disregard the letter dated January 8, 1900, and read in evidence by defendant.” The defenses were grounded on the statute of frauds, and were: first, that the letter of January the sixth did not bind Eeger because Lee signed his name, without written authority to do so; second, that said letter did not constitute a ratification of the contract made by Eeger’s brokers with Johnson unless Eeger knew when it was written who was the vendee ; third, that neither that letter, nor any other in the correspondence, described the' land to be sold and, hence, constituted neither an authority to Hopkins & Eicketts to make a contract of sale, nor a ratification of the contract they made; fourth, that Eeger’s acts did not ratify the sale because he acted without full knowledge of its terms; fifth, that if a term was introduced by Hopkins & Eicketts into the sale contract made with Johnson in regard to furnishing the latter an abstract at Eeger’s expense, which Eeger had not authorized, his letter, written before be knew of tbis term, was not binding on him. All instructions but two requested by tbe defendant were refused. One of tbe two given told tbe jury tbat if tbe land was worth no more than Johnson was to pay for it, he could only recover tbe fifty dollars paid to bind tbe bargain; the other, that if they found from all tbe facts and circumstances Eeger neither wrote nor authorized Lee to write the letter of January sixth, their verdict should be for the defendant. Thirteen of tbe instructions requested by the defendant were refused of which we recite five to exemplify fully how tbe case was presented to tbe jury: “The jury is instructed that although you may find that Hopkins & Ricketts did sell the forty acres of land to Johnson, if you further find from tbe evidence tbat L. Eeger, on tbe sixth of January, 1900, when tbe letter of tbat date to Hopkins & Ricketts signed ‘Lorenz Eeger’ was written, did not know to whom Hopkins & Ricketts bad sold tbe same, then under tbe evidence in tbis case you should return a verdict for defendant, even if you should find that said letter was written by authority of said Eeger.” “Even if Hopkins & Ricketts did execute and deliver to tbe plaintiff the written receipt dated January 5, 1900, and plaintiff did pay said Hopkins & Ricketts fifty dollars, if you further find tbat said Hopkins & Ricketts did not at tbe time, have written authority from L. Eeger to so sell said land, then, at the date when said contract was made defendant was not bound by it.” “The jury is instructed that under the evidence in this case, if L. Eeger wrote or authorized the letter of January 6, 1900, to be written and the only information be bad at that time of a sale of said forty acres was tbe information given him by tbe letter of January 5, 1900, from Hopkins & Ricketts, and if, on tbe receipt of tbe letter by Eeger from Hopkins & Ricketts, dated Januaray 8, 1900, said Eeger found that said Hopkins & Ricketts bad made a different sale of land tban be employed them to make, .then he bad tbe right to refuse to deed said land to Johnson.” “Tbe jury is instructed that if Eeger wrote tbe letter of January 6, 1900, be could thereby ratify tbe sale of tbe forty acres of land to Johnson only to tbe extent of tbe knowledge of said sale as then known to him, and if such sale was materially different from what was reported to him in tbe letter from Hopkins & Ricketts, then Eeger was not required to execute a deed from Eeger to Johnson and the defendant is not liable herein.” “Tbe court instructs tbe jury that if Eeger did write tbe letter of January 6, 1900, to Hopkins & Ricketts, or directed tbe same to be written, and in answer thereto Hopkins & Ricketts wrote tbe letter of January 8, 1900, inclosing a deed to be executed to Johnson, and in said letter required Eeger as an additional condition of such sale to furnish Johnson an abstract to said land, then Eeger bad tbe right to refuse to execute such deed and furnish such abstract, and your verdict should be for defendant.” (1) “No contract for tbe sale of lands made by an agent shall be binding upon tbe principal, unless such agent is authorized in writing to make said contract” R. S. 1899, sec. 3118. (2) A ratification must be in writing, and as full and complete as tbe contract to sell. Hawkins v. Mc-Groarty, 110 Mo. 516; Palmer v. Williams, 21 Mich. 328. (3) It is claimed that tbe letter of January 5, and tbe answer of January 6, make out a ratification of the contract of January 5 by tbe agents who, it is admitted, bad no written authority to make this sale. Neither of these letters describe tbe land, give tbe name of tbe purchaser, nor tbe terms of tbe contract. A party can not accept tbe terms of an offer before they are communicated to him. James & Son v. Eruit Jar Co., 69 Mo. Ap-p. 213. (4) Absolutely no written authority to sign Eeger’sname, or to execute any instrument whereby his lands might be affected, was given to witness Lee. “No contract for the sale of lands made by an agent shall be binding upon the principal unless such agent is authorized in writing to make said contract.” R. S. 1899, sec. 3418; Greening v. Steele, 122 Mo. 287. (5) Prior to the amendment, in 1887, of above section, the agent who was authorized to sell land, whether such authority was in writing or not, had authority to sign his principal’s name to a contract in writing for the sale of land. Since said amendment the rule is otherwise. Glass v. Rowe, 103 Mo. 513; Greening v.. Steele, 122 Mo. 287. (1) Reading the correspondence between Eeger and his agents, and the deed made by them and sent to him for signature, containing a proper description of the land and the terms of sale, is a sufficient memorandum to take the case, as between Eeger .and the agents, out of the statute. (2) In the case of Baine v. Wiggins, 139 U. S. 210, it is held that a deed, though void as a conveyance, may be read in connection with the letters between the parties for a description of the land sold, and that, taking them all together, it was a sufficient memorandum to take the case out of the statute, of frauds. Ereeland v. Ritz, 12 L. R. A. 561; Louisville, etc., v. Lovick, 2 L. R. A. 212; Heideman v. Wolf stein, 12 Mo. App. 366; Arnsby Co. v. Eckerly, 42 Mo. App. 299; Eox v. Courtney, Ill Mo. 147; Mantz v. Maguire, 52 Mo. App. 106; Block v. Crother, 74 Mo. App. 480. (3) The letter of Eeger, written the sixth of January, must be read in connection with the contract between his agents and Johnson, and the two together, as in the Pennsylvania case, are sufficient to satisfy the statute; for when Eeger wrote the letter of January 6, that was an adoption of the contract which they had made. Mechero on Agency, secs. 128, 129; Kelly v. Railroad, 141 Mass. 49Y; Porter v. Woods, 138 Mo. 552; Rogers v. Knee-land, 10 Wend. 219. (4) The ratification, by the principal, of an unauthorized act of an agent relates to the date of such act as between the immediate parties. Kempner v. Rosenthal, 81 Tex. 12; Maclean v. Dunn, 4 Bing. 122.