Griswold v. Haas

• Decision Date: 15 March 1919
• Docket Number: No. 19082.,19082.
• Parties: GRISWOLD v. HAAS.
• Court: Missouri Supreme Court

210 S.W. 356

GRISWOLD v. HAAS.

No. 19082.

Supreme Court of Missouri, in Banc.

March 15, 1919.

Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

Action by P. A. Griswold, Commissioner, against Max Haas. A judgment in favor of plaintiff was affirmed by the St. Louis Court of Appeals (191 Mo. App. 97, 177 S. W. 728), and the case was certified to the Supreme Court. Reversed and remanded.

See, also, 145 Mo. App. 578, 122 S. W. 781.

Henry H. Furth, of St. Louis, for appellant.

John B. Denvir, Jr., and P. A. Griswold, both of St. Louis, for respondent.

BLAIR, J.

This cause was appealed to the St. Louis Court of Appeals. The judgment was affirmed. 191 Mo. App. 97, 177 S. W. 728. Judge Allen dissented and certified the cause here because he thought the decision in conflict with certain decisions of this court and the Kansas City Court of Appeals.

In 1907, respondent was, by the circuit court of the city of St. Louis, appointed commissioner to make a sale of certain bonds involved in litigation pending in that court. He duly offered the bonds for sale, and, appellant making the highest bid, they were knocked down to him at a price of $276, $15 of which was paid at the time. When respondent asked him who was the purchaser, appellant stated that he bought them for George F. McLain. Respondent, as commissioner, reported to the court the sale of the bonds to McLain, and that sale was duly approved. Later, respondent tendered the bends to McLain and demanded the balance of the sale price, $261. McLain refused to accept the bonds or pay the balance. This was reported to the circuit court, and respondent ordered to bring suit. Respondent had the bonds in his possession. He sued appellant Haas on the contract of sale. The case reached the Court of Appeals. Griswold v. Haas, 145 Mo. App. 578, 122 S. W. defendant in 781. The statement averred a sale to Haas, from July 1, and the suit was one to recover the purchase price. The court held there was "a fatal departure from the allegations of the petition." It held that respondent Griswold's testimony in that case disclosed "a sale to McLain, a report to the court of the fact of a sale to McLain, and an approval and confirmation by the court of a sale to McLain." The court said Haas had not, in that case, been "sued as agent, nor for deceit in pretending to be an agent when in fact he was principal." The court held, citing authorities, that the suit was one for goods sold and delivered, and that Haas could not be held in such an action; that where one "acts professedly for another, but without authority, he renders himself individually liable"; that the remedy is "for deceit or in assumpsit upon the express or implied warrant of authority. If he knowingly and falsely represents that he had authority to act, the former remedy is the appropriate one. If he makes the representation in good faith, then the latter remedy should be pursued." The court thereupon reversed the judgment outright.

Subsequently, respondent brought this suit. The petition or statement sets forth the proceedings authorizing the sale of the bonds and the time and terms of sale, and proceeds:

"Plaintiff further states that the defendant herein being the highest and best bidder for said bonds, the same were struck off and sold to him for the sum of $276.00, and defendant then and there paid to plaintiff the sum of $15.00 required on account of the purchase price of said bonds.

"That upon plaintiff inquiring who the purchaser was, the defendant stated that one G. F. McLain was.

"That thereafter, to wit, on the 1st day of July, 1907, said sale of said bonds made on the 21st day of February, 1907, was approved by said circuit court.

"That thereafter, to wit, on or about the 3d day of July, 1907, plaintiff made a tender of said bonds to said G. F. McLain and demanded of him the sum of $261.00, the balance of the purchase price of said bonds.

"That said G. F. McLain denied that defendant was his agent or authorized to use his name or represent him in the purchase of said bonds, and refused to receive said bonds or to pay the balance of the purchase price thereof and has ever refused to do so.

"That plaintiff is now and has ever been ready to deliver said bonds upon the payment of the purchase price.

"That by reason of the premises plaintiff has been damaged in the sum of $261.00, together with interest thereon from the 1st day of July, 1907.

"That on or before, to wit, the 14th day of January, 1908, the circuit court in said division No. 5 ordered plaintiff herein to institute legal proceedings to recover the balance of the purchase price of said bonds.

"Therefore, plaintiff prays judgment against the sum of $261.00 and interest 1907, and for costs."

The trial court, on defendant's request, made the following finding of facts: It found facts showing respondent's authority to sell the bonds, the fact of sale, and that

"At said sale defendant was the highest and best bidder, and thereupon said bonds were struck off to him for the price of $276, and at said time defendant paid to plaintiff the sum of $15 on account of said purchase. That on inquiry concerning the name of the purchaser defendant stated the purchaser was George F. McLain, and that subsequently the sale was duly approved by division No. 5 of this court.

"That after said plaintiff made a tender of said bonds to said McLain and demanded of him the balance of the purchase price, namely, $261, and that said McLain repudiated the agency of defendant.

"The court further finds that defendant was not authorized to purchase said bonds for said McLain, and therefore was not the agent of said McLain in said purchase; and that after said sale said McLain did not recognize and approve defendant's purchase of said bonds as his agent.

"The court further finds that there is due on account of said purchase by defendant the sum of $276, less $15, the amount paid at the time."

The last sentence was subsequently modified as hereinafter pointed out.

The court rendered judgment against appellant for $261. An appeal took the case to the Court of Appeals. The majority opinion holds that the measure of damages was the difference between the amount bid and the sum paid; that the value of the bonds was immaterial; and that the judgment was for the right party and should be affirmed.

It is to be kept in mind that respondent now has the bonds and, also, a judgment exactly equivalent to the unpaid portion of the bid made at the sale.

I. On the first appeal in the first suit (Griswold v. Haas, 145 Mo. App. loc. cit. 585, 122 S. W. 783), it was held that—

"The proper action in a case of this kind, where one falsely represents himself as agent, is not on...