Hawkins v. McGroarty

• Decision Date: 06 June 1892
• Citation: 19 S.W. 830,110 Mo. 546
• Parties: Hawkins, Appellant, v. McGroarty et al
• Court: Missouri Supreme Court

19 S.W. 830

110 Mo. 546

Hawkins, Appellant, v. McGroarty et al

Supreme Court of Missouri, First Division

June 6, 1892

Appeal from St. Louis City Circuit Court.-- Hon. Daniel Dillon Judge.

Affirmed.

Gibson Bond & Gibson for appellant.

The written authority not having authorized the contract, it was not competent for the owner to ratify it verbally so as to make it binding on him.The general rule is that what would not give authority in the first instance cannot amount to a ratification.The ratification to be binding must have been in writing.Story on Agency, sec. 242;12 N.H. 232.

W. P Macklin for respondent, E. J. McGroarty.

(1) The object of the statute of frauds is to prevent mischief arising from resort to parol evidence.Therefore, it is required that the contract giving power to sell shall state parties, subject-matter of contract, the consideration and promise, leaving nothing open to future treaty.Fry on Specific Performance, sec. 486, p. 245.(2) What is not authority in first instance cannot amount to a ratification.As authority in the first instance can be in writing only, it follows that a ratification must be in writing also; otherwise we make that a ratification which could constitute no authority in the first instance.Story on Agency[9 Ed.] sec. 242;Dispatch Line v. Mfg. Co.,12 N.H. 231.(3) Where agent makes contracts in excess of the power given him in his written authority it will not bind principal.Glass v. Rowe,103 Mo. 513.(4) Specific performances should not be decreed upon an oral understanding or contract, because they are too uncertain, and equity looks upon them with suspicion.2 Story's Equity Jurisprudence, secs. 753-767;Paris v. Haley,61 Mo. 453.(5) When the defense is made under the provisions of the statute of frauds, the defendant is the public addressing the court, and the court acts not from moral considerations, but from public policy.Fry on Specific Performance[3 Ed.] sec. 459, p. 225.

W. S. Bodley for respondent Maull.

(1) Under the law and under the terms of Hiemans' appointment as agent, Hiemans could not bind Maull for any sale except for the sum of $ 1,400 (Acts of 1887, p. 195;R. S. 1889, sec. 5186, p. 1257), where the authority of agent to sell in order to charge principal must be in writing.As to construction of statutes of 1887 of frauds, seeRevised Statutes, 1889, sec. 5786.Glass v. Rowe,103 Mo. 536.(2) Conceding for argument's sake that under the clause, "or such other price as I may hereafter agree upon," Hiemans could legally bind Maull for a less sum than $ 1,400, should he thereafter agree upon the offer made, we say this ratification, under the law above quoted, must be in writing, and if not in writing must be clearly established without conflict of testimony, or, as our supreme court puts it in Louthar v. Stillwell,73 Mo. 492, the evidence must be so clear that a court of equity can clearly see there was no conflict in the understanding of the parties; and such evidence must be clearly unequivocal, not merely preponderating, as is ordinarily required in a court of law.Veth v. Gierth,92 Mo. 97;Strange v. Crowley,91 Mo. 287;Lapham v. Driesvogt,36 Mo.App. 275;Railroad v. McCarthy,97 Mo. 214.(3) It is incumbent on plaintiff to show that he did bring himself within the terms of his agreement with Hiemans, viz., in taking steps to complete the same within ten days from the date thereof by having title examined and making tender of purchase money within the time specified in the receipt.(4)The supreme court will exercise a control over the finding of the lower court in equity cases, and on the facts at the trial there should have been a judgment for defendants on these facts.Benne v. Schnecko,100 Mo. 250;McElroy v. Maxwell,101 Mo. 294.(5)The plaintiff has furnished no printed abstract of the record as required by rule 12 of this honorable court.

OPINION

Brace, J.

By an act approved March 19, 1887, the statute of "frauds and perjuries,"section 2513, Revised Statutes, 1879, was amended by adding the following clause to that section: "And 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."

This is an action in the nature of a bill in equity to specifically enforce the written contract of an agent in the name of his principal for a sale of land made by the agent, not within the terms of such agent's written authority, upon the ground of a verbal ratification of such sale by the principal after he was informed thereof.In the facts of the case there is no element of equitable estoppel.Plaintiff's evidence tended at most only to prove that the defendant, when informed by letter of the sale, did not manifest to the agent any disapprobation thereof, but directly thereafter sold to another person.

The trial court ruled that the written authority must authorize the agent to make the contract which he does make, in order to bind the principal, and unless it does so the ratification thereof must be in writing to bind him, citing Story on Agency[9 Ed.] sec. 242, andDespatch Line v. Mfy. Co., 12 N.H. 205, in which it was held that "a ratification of an act done by one assuming to be an agent relates back, and is equivalent to a prior authority.When, therefore, the adoption of any particular form or mode is necessary to confer the authority in the first instance, there can be no valid ratification except in the same manner."

At common law, where a contract is required to be under seal, a ratification must also be under seal.1 American & English Encyclopedia of Law, 436;Story on Agencysec. 49, and authorities in note 3;Mechem on...