Johnson v. Fecht

• Decision Date: 13 May 1902
• Citation: 68 S.W. 615,94 Mo. App. 605
• Parties: JOHNSON v. FECHT.
• Court: Missouri Court of Appeals

68 S.W. 615

94 Mo. App. 605

JOHNSON v. FECHT.

Court of Appeals at St. Louis, Missouri.

May 13, 1902.

EVIDENCE — COMPETENCY — AUTHORITY TO SELL LAND — INSUFFICIENT DESCRIPTION — EXTRINSIC PROOF — STATUTE OF FRAUDS — RATIFICATION.

1. Evidence that a letter written and signed in handwriting other than that of the one whose name was subscribed came in an envelope containing a deed from him to another party was not competent to prove that its writing and signing had been authorized.

2. A letter to an agent, authorizing the sale of land, which merely referred to it as the "forty-acres tract," did not sufficiently describe the land to permit it to be identified by extrinsic proof.

3. An agent wrote to his principal, "We have sold the forty acres on the south side of the road for $1,000," etc. The principal, in his reply, acknowledged the receipt of "your favor * * * regarding the forty-acres 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 Rev. St. 1899, § 3418, 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."

4. Where an agent, having no authority to sell certain land, 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," but 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 the forty-acres tract of land," and directing the deed to be 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 circuit court, Audrain county; Elliott M. Hughes, Judge.

Action by J. T. Johnson against William Fecht, administrator of the estate of Lorenz Feger, deceased. From a judgment for plaintiff, defendant appeals. Reversed. Case certified to supreme court.

Lorenz Feger formerly lived in Audrain county, where he died on the 17th 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 Fecht is administrator. The demand is as follows:

                "William Fecht, Administrator of Lorenz Feger
                  Deceased, Dr. to James T. Johnson
                To damages for failure to convey
                  forty acres of land bought of said
                  Feger by Johnson January 5, 1900    $400 00
                To cash paid and not returned on said
                  purchase ..........................   50 00
                                                      _______
                    Total ........................... $450 00"
                

Feger had a farm in Audrain county of 128½ acres, of which 88½ acres lay to the north of a road, and 40 acres to the south. In December, 1899, 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 & Ricketts, real estate brokers in the city of Mexico, to sell said farm for him for $4,000. They sold the portion north of the road to T. B. Hill for $3,000, and notified Feger, who was at the time in St. Mary's Infirmary, in the city of St. Louis. Feger 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 & Ricketts, 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. [Signed] Yours truly, L. Feger." On this letter being shown to them, Hopkins & Ricketts made out a deed conveying the 88½ acres to Hill, and sent it to Feger. Feger sent back the deed executed, but imperfectly acknowledged, and it had to be returned to him for reacknowledgment. This was attended to, and when he again sent the deed to Hopkins & Ricketts 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 5th day of January, Hopkins & Ricketts made a contract with the plaintiff, Johnson, to sell him the 40 acres for $1,000, of which he paid $50 at the time, and they executed the following receipt: "$50.00. Mexico, Mo., January 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. Feger, 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. Feger, at and for the price and sum of one thousand dollars, to wit: One and one-half (1½) acres in the northwest corner of the southwest fourth (¼) of the northeast quarter (¼); twenty (20) acres, the north part of the southeast fourth (¼) of the northwest quarter (¼); and nineteen (19) acres, being all that part of the sixty-one (61) acres, the west part and north part of the north half (½) of the northwest quarter (¼), that lies south of the county road; containing, in all, forty and one-half (40½) acres, more or less; all in section twenty-two (22), township fifty-one (51) north, range nine (9) west of the fifth P. M., and being all that part of the 128½-acres tract of land conveyed to said L. Feger 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. Feger." On the same day they wrote this letter to Feger: "Mexico, Mo., Jan. 5th, 1900. Mr. Lorenz Feger, 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 you there, or will you be home in a few days? The party would like to close up the deal in a few days. Yours very truly, Hopkins & Ricketts." They received within a day or so the following answer: "St. Louis, Jan. 6th, 1900. Messrs. Hopkins & Ricketts, Mexico, Mo. — Gents: I am just in receipt of your favor of 5th inst., regarding sale of the forty-acres tract of land. In reply would say as follows: Have deed made out and send to me for signing, as I cannot 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 yours respectfully, Lorenz Feger." The last letter was written by a fellow inmate of the infirmary, by the name of Lee, with whom Feger 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 Feger's presence, and read over to the latter after it was written. On receipt of it Hopkins & Ricketts sent the following letter to him, and inclosed a deed to Johnson for the 40 acres of land, to be executed: "Mexico, Mo., Jan. 8th, 1900. Mr. Lorenz Feger, St. Louis, Mo. — Dear Sir: We received the deed to Amanda Hill, duly acknowledged. We expected to close the deal last Saturday, but the roads were in such bad condition that they could not get in. We will close it up to-morrow, and place the money in Southern Bank to your credit. We find that the taxes are not paid on the farm for 1897 and 1899, — two years. In regard to the suggestions made by your notary public, will say that the land was deeded to you as `L. Feger,' and we made the deed from you to correspond. That's all right, however. We inclose deed for you to execute to the forty acres south of the road. As soon as deed is returned, we are ready to close the deal. Mr. Johnson wants an abstract to the land. We turned the one you had over to Mr. Hill. We will say to you, in this connection, that we will make you the abstract to the forty acres at half price, as you already had one to the whole farm. We hope this will be satisfactory to you. Will write you as soon as we get the Hill deal closed. Yours very truly, Hopkins & Ricketts." Feger never executed the deed to Johnson, but sold the land on the 16th day of January to William Fecht, who is his wife's nephew, and now the administrator of the estate, without consulting the agents who had made the sale to Johnson. After Feger's death, Johnson presented this claim for damages on account of the failure to carry out the contract for the sale of the land which Hopkins & Ricketts had made. The case went from the probate court of Audrain county to the circuit court, where there was a judgment for the plaintiff, from which the defendant took this appeal.

Six instructions were given to the jury at the instance of the plaintiff, the purport of all of them being that the above-quoted letter, dated the 6th day of January, and written by Lee for Feger, was a ratification by Feger of the contract made by Hopkins & Ricketts with Johnson. Two of those instructions will be quoted to illustrate the theory propounded: "The court instructs the jury that if Feger, after being notified of the sale made to plaintiff, wrote the letter, or authorized the...