Briggs v. Munchon

• Decision Date: 31 March 1874
• Citation: 56 Mo. 467
• Parties: JANE BRIGGS, Respondent, v. CHARLES W. MUNCHON, Appellant.
• Court: Missouri Supreme Court

56 Mo. 467

JANE BRIGGS, Respondent,

v.CHARLES W. MUNCHON, Appellant.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

R. S. Voorhis, for Appellant.

The defense in this case arises under the Statute of Frauds. (Wagn. Stat., p. 438, § 5.)

The “Field Book,” or so much as purported to contain the contract sued on, was inadmissible to prove the contract pleaded in the petition. That contained in the “Field Book,” and put in evidence is at variance with the contract set up in the petition. First--The contract put in evidence, on its face shows a contract with John Riggin, Jr. He is the contracting party. Parol proof was introduced to show, that although John Riggin, Jr., is named in the memorandum as the contracting party, he was not such, but that Jane Briggs, not at all named in the memorandum, was the contracting party. The evidence was clearly inadmissible. (Higgins vs. Senior, 8 Mees. & W., 843; Wilson vs. Bailey, 1 Handys, 178; Kean vs. Davis, Spencer, N. J., 425.)

Second--The name of the plaintiff does not appear in the memorandum as the contracting party. When parol proof is admitted to explain the memorandum offered in evidence so as to substitute Jane Briggs for John Riggin, Jr., for this is really what has been done in the case, additional parties are introduced and the memorandum is made a joint contract by several persons, instead of a contract with Jane Briggs, which is attempted to be proved by the memorandum. In other words, a contract with several persons jointly is introduced to prove a contract alleged to have been made by one person, which is a fatal variance. The memorandum shows a joint contract, whereas a personal contract is pleaded. (Sugd. on Vendors. 130; Davis vs. Symonds, 1 Cox. Ch., 409; Story on Sales, §§ 466-7; Hilliard on Sales, p. 482, § 28; Hicks vs. Whitmore, 12 Wend., 548; Craig vs. Godfrey, 1 Cal., 415; Horton vs. McCarty, 53 Me., 394; Buckmaster vs. Harrop, 13 Ves., 456; Smith vs. Arnold, 5 Mason, 414.) Story on Sales, § 257, Note 1, cases cited.)

The printed portion of the memorandum shows two facts patent. First--That the sale was on account of the heirs of the Briggs estate; a sale by the heirs of Briggs. Second--That the sale was of a joint property. It implies a joint property, undivided, in the heirs of Briggs. (Story on Sales, § 257; and Note 1, cases cited; I.d, § 46.)

T. K. Skinker, for Respondent.

Whatever the words “Sold for account of John Riggin, Jr,” might import if unexplained, the explanation of Riggin's connection to the transaction, as detailed by himself, clears away any inference that he was the other party to the contract. He was no more than a speculator at whose expense the sale was to be conducted and to whom the auctioneers were to look for compensation for their services. His testimony cannot be objected to by defendant as explaining a writing by parol evidence, because it was drawn out on cross-examination by defendant himself.

Whether the language of the memorandum is sufficiently precise as to the ownership or not, can make no difference. Granting it to be equivocal, it is certainly legitimate to resort to the pleadings for any facts that may explain it, and the pleadings and evidence clearly show it. (Browne Stat. Frauds, § 350.)

The memorandum shows the property sold was in the Briggs Estate and was lots 1 & 2, block 3. The Briggs Estate is in St. Louis county, Missouri, and was partitioned by commissioners and subdivided into lots, and the plat of the subdivision recorded in the office of the Recorder of Deeds for the county. The lots could not be more certainly identified.

As to the objection, that the name of the plaintiff does not appear in the memorandum;--Defendant's name appears in full in the memorandum.--Plaintiff's name does not appear, but in place of it we find those of her admitted agents, Belt and Priest. That is enough. If the name of the agent appears, that makes it the contract of the principal. The principals need not appear, whether the case comes under the statute of frauds or not. (Cato vs. Hutson, 7 Mo., 142, 148; Higgins vs. Dellinger, 22 Mo., 397; Wiley vs. Robert, 27 Mo., 388; Higgins vs. Senior, 8 Mees. & W., 844; Trueman vs. Loder, 11 Ad. & Ell., 589; Ford vs. Williams, 21 How., 289; Yerby vs. Grigsby, 9 Leigh, 391; Hubbert vs. Borden, 6 Whart., 79; Bank of U. S. vs. Lyman, 20 Verm., 673, 674; Williams vs. Bacon, 2 Gray, 393.)

Where the writing does not purport to be the contract, but only a memorandum of it, resort may be had even to parol evidence to explain it. (Rollins vs. Claybrook, 22 Mo., 405; Moss vs. Green, 41 Mo., 389.)

As a defendant may be charged on a contract wherein only his agent's name appears, so may a plaintiff avail himself of such a contract and maintain an action on it. (Browne Stat. Frauds, § 373; Bateman vs. Phillips, 15 East., 272; Salmon Falls Manuf'g Co. vs. Goddard, 14 How., 446; New Jersey Steam Navig'n Co. vs. The Bank, 6 How., 380; York County Bank vs. Stein, 24 Md., 464; Brooks vs. Minturn, 1 Cal., 481; Beebe vs. Robert, 12 Wend., 413; Taintor vs. Prendergrast, 3 Hill,, 72; Sims vs. Bond, 3 Barn & Ad., 38; Cathay vs. Fennell, 10 B. & C., 672; Beckham vs. Drake, 9 Mees. & W., 79; Same Case, 11 Id., 315; 1 Parson's Bills & Notes, 102; Higgins vs. Dellinger, 22 Mo., 397; Higgins vs. Senior, 8 Mees & W., 844.)

When the fact of agency is expressly admitted, as in this case, there can be no doubt that an unnamed principal can avail himself of it.

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 Riggin, 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 Garden, 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 plats are now being prepared, and will be ready for distribution on the 15th inst. Belt & Priest, 219 Chestnut Street. Block 3, lot land 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 Riggin, 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.

Various 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 Riggin's connection with the sale and the cause of his name appearing in the margin of the page which evidenced that sale, was sufficiently and satisfactorily accounted for...