Berberet v. Myers

• Court: Missouri Supreme Court
• Writing for the Court: Lamm
• Citation: Berberet v. Myers, 240 Mo. 58, 144 S.W. 824 (Mo. 1912)
• Decision Date: 09 February 1912
• Parties: BERBERET et al. v. MYERS et al.

144 S.W. 824

240 Mo. 58

BERBERET et al. v. MYERS et al.

Supreme Court of Missouri.

February 9, 1912.

1. PLEADING (§ 34)—PETITION—SUFFICIENCY —VERDICT.

Where a petition is attacked after verdict or judgment, it will be reviewed less critically than on demurrer.

2. APPEAL AND ERROR (§ 193)—PRESENTATION OF GROUND OF REVIEW IN COURT BELOW —PETITION—SUFFICIENCY.

Objection that a petition does not state a cause of action may be first raised on appeal.

3. JUDGMENT (§ 263)—ARREST OF JUDGMENT —DEFECTS IN PLEADING.

A bill for specific performance held sufficient to state a cause of action when attacked for the first time by motion in arrest of judgment.

4. BROKERS (§ 9) — CONTRACTS — CONSTRUCTION.

A contract, whereby vendors appointed real estate brokers as their agents to enter into a written contract for the sale of land, with the provision that if they should withdraw the property from sale before 1905 the brokers should receive certain compensation, does not, by its terms, expire in 1905.

5. PRINCIPAL AND AGENT (§ 33)—REVOCATION OF AGENCY—EFFECT.

A naked agency not coupled with an interest may be revoked, contrary to its provisions, and the revocation cannot be called in question by third persons.

6. CONTRACTS (§ 245)—WRITTEN CONTRACTS —EFFECT.

A reduction of a contract to writing supplants all prior or contemporaneous verbal agreements.

7. BROKERS (§ 94) — CONTRACT OF EMPLOYMENT.

While, upon proper pleadings, equity will relieve a person from a written contract entered into through fraud or mistake, vendors of land who entered into a contract giving a broker an agency for its sale cannot, where the contract was a continuing one, be relieved from a sale made by him merely because they understood that the agency was to expire at

a given time; their understanding being immaterial to the interpretation of the contract.

8. SPECIFIC PERFORMANCE (§ 8)—RIGHT TO— DISCRETION.

While the chancellor has a discretionary duty in decreeing specific performance, his discretion is a legal one, and relief cannot be denied where the contract is fair and equitable, and so a purchaser of land whose contract is fair and equitable may have specific performance regardless of his remedy at law.

9. PRINCIPAL AND AGENT (§ 103) — CONTRACT OF AGENCY—INCIDENTAL POWER.

Where a principal enters into a contract of agency, powers essential or usual to those granted are implied, but a substantial departure from both express and implied power will not bind the principal, and hence, where a principal gave an agent power to enter into a contract for the conveyance of land without fixing the date for the time of conveyance, the agent might fix the date.

10. BROKERS (§ 14)—IMPLIED POWERS—SALE OF LAND.

Where a broker was given power to sell land for cash, a contract, whereby part of the purchase price was to be paid at the time of entering the contract, and the remainder upon delivery of the deed, was within his powers and binding on the principal.

11. VENDOR AND PURCHASER (§ 170)—TENDER OF PURCHASE PRICE.

Where the entire purchase price of land was tendered to the vendor, he cannot complain that part of it was improperly paid to his broker in the first instance.

12. APPEAL AND ERROR (§ 173)—QUESTIONS PRESENTED FOR REVIEW.

Where the pleadings do not present the question, it cannot be urged, on appeal from a decree awarding specific performance of a contract for the sale of land made by an agent, that there was a fatal variance between the power of the agent and the contract negotiated.

13. PRINCIPAL AND AGENT (§ 155)—RIGHTS OF THIRD PARTIES.

Where an agent, having the power to sell land, entered into a contract providing that his principal should pay interest on earnest money deposited by the purchaser, the principal cannot complain that the agent thereby exceeded his authority, where the purchaser has made no claim for the interest.

14. PRINCIPAL AND AGENT (§ 155)—RIGHTS OF THIRD PERSON—EXCESS OF AGENT'S AUTHORITY.

As the law disregards small things, an agent's agreement to pay a very small interest on earnest money, deposited to bind a contract for the sale of land, will not invalidate the contract, though the agent was not authorized to agree to such payment.

15. PRINCIPAL AND AGENT (§ 103)—CONTRACTS OF AGENT—EXCESS OF AUTHORITY.

Where a contract authorized real estate agents to contract for the sale of their principal's land by satisfactory deed, a contract of sale providing for the execution of a warranty deed was not in excess of the agents' authority.

16. APPEAL AND ERROR (§ 173)—PRESENTATION OF GROUNDS OF REVIEW IN COURT BELOW—NECESSITY.

In an action by purchasers of land for specific performance, the vendor who executed the contract through his agent cannot for the first time on appeal object that the contract of sale did not describe the same land which the agent was, by another contract, authorized to sell.

17. PLEADING (§ 36) — ADMISSIONS—ADMISSION IN PLEADING.

Where defendants' answer in a suit for specific performance admitted that their agents were authorized to contract for the sale of lands alleged to have been sold to plaintiff, they are precluded from maintaining that land sold to plaintiffs was different from that which the agents were authorized to sell.

18. BOUNDARIES (§ 9) — ASCERTAINMENT — CALLS FOR QUANTITY.

The call for quantity may be resorted to, to aid in locating descriptions which would otherwise be uncertain.

19. PRINCIPAL AND AGENT (§ 189)—AUTHORITY —AFFIRMATIVE DEFENSES.

In an action for the specific performance of a contract for the sale of land entered into by vendor's agent, defenses that the agent exceeded his authority are affirmative and must be pleaded.

20. PLEADING (§ 78)—DENIAL—GENERAL DENIAL —EFFECT.

A general denial puts in issue the facts pleaded in the petition, and not defendant's liability, and facts from which a conclusion of nonliability can be drawn must be pleaded when not set up in the petition.

21. PRINCIPAL AND AGENT (§ 10) — CONTRACTS FOR SALE OF LAND—RECORD.

A real estate agent was given, by written contract, power to enter into written contracts for the conveyance of land owned by his principal. Held, that while Rev. St. 1909, § 2783, required the agent to be authorized in writing to enter into contracts for a conveyance, such contract need not be recorded or acknowledged in accordance with section 2816, providing that every letter of attorney containing a power to convey real estate as agent shall be acknowledged and recorded, for in this case the power

was only in contracts with the principal to convey, and the last section does not invalidate conveyances between the parties.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Suit by Nicholas J. Berberet and another against Georgia Myers and others. From a decree for plaintiffs, defendants appeal. Affirmed.

F. E. Roberson and A. Doneghy, for appellants. L. F. Cottey and F. H. McCullough, for respondents.

LAMM, J.

Equity. Relief sought, specific performance of a contract to convey land in Knox county.

The bill, summarized, counts on the following facts: That defendants owned the following land in fee simple: "The west end of the north half (240 acres), the southeast fourth of the northeast quarter (40 acres), and the northwest fourth of the southwest quarter (40 acres), of section fourteen (14), township sixty-two (62), range twelve (12), west of the fifth principal meridian, and containing in the aggregate 320 acres, more or less, in Knox county, Missouri." And on the 9th day of February, 1904, they executed a contract, a warrant of authority to a certain partnership, real estate agents, doing business under the name and style of the Parsons Real Estate Agency of Edina, Mo., authorizing said agency to enter into a written contract with a purchaser in defendants' behalf and names to sell and convey said land, thereby agreeing that if their agents sold the land, they, on their part, would make a good and satisfactory deed, and (if required) give a clear abstract of title. As remuneration the agents were to receive $1 per acre "out of the first money collected." The land to be sold at a sum to net defendants $11,200. If sold by other parties, defendants were to pay the agency $25 to cover cost of advertising. If defendants wished to withdraw the land from market or advance the price, then, in such event, defendants agreed to give their said agents written notice 30 days prior to such withdrawal or advance. They further agreed to pay said agents $25 for advertising should they withdraw the real estate from market prior to January 1, 1905; no change in price or terms by defendants to work a forfeiture of commissions, and the terms of sale contract to be cash on executing a deed. Alleging that while said contract of agency was in full force, and with no notice to the agents or either of them by defendants or any of them of the withdrawal of the land from market or an advance in price, defendants' said agents in their names contracted in writing with plaintiffs on September 12, 1906, to sell the land at a total price which, deducting commissions, made the net contract price, whereby $1,000 were to be paid on the execution of the contract of sale, the balance when deed and possession were delivered on or before March 1, 1907; that defendants, by said sale contract, agreed to furnish an abstract of title and execute a good and sufficient warranty deed and deliver possession on or before March 1, 1907; that on the contract date plaintiffs paid to said agency for and on behalf of defendants the said sum of $1,000, and afterwards and before March 1, 1907, offered and tendered to defendants and each of them the amount of the money due them respectively and demanded a deed, and again on March 1st they made another tender to the agency of the balance of the purchase price, and through defendant's said agents demanded of defendants the execution of a deed...