Johnson v. Fecht

• Decision Date: 22 December 1904
• Citation: 83 S.W. 1077,185 Mo. 335
• Parties: JOHNSON v. FECHT, Administrator of the Estate of LORENZ FEGER, Appellant
• Court: Missouri Supreme Court

83 S.W. 1077

185 Mo. 335

JOHNSON v. FECHT, Administrator of the Estate of LORENZ FEGER, Appellant

Supreme Court of Missouri, First Division

December 22, 1904

Transferred from St. Louis Court of Appeals.

Reversed.

Fry & Rodgers for appellant.

All of the authorities are agreed that the memorandum must state the contract with reasonable certainty, so that its essential terms can be ascertained from the writing itself without resort to parol evidence. Ringer v. Holtzclaw, 112 Mo. 522; Boyd v. Paul, 135 Mo. 13; Kelly v Thuey, 143 Mo. 422; Weil v. Willard, 55 Mo.App 376; Schroeder v. Taaffe, 11 Mo.App. 267; Scarritt v. Church, 70 Mo.App. 178; Fox v. Courtney, 111 Mo. 147. The writing must be a guide to find the land, must contain sufficient particulars to point out and distinguish the tract from any other. Burns v. Freling, 98 Mo.App. 270; King v. Wood, 7 Mo. 389; Beckham v. Upham, 97 Mo.App. 164; Whaley v. Hinchman, 22 Mo.App. 485. The two letters constitute the writing. The writing does not give the county or State, section, township or range, in which the land was located. It does not indicate the road referred to or describe or locate it. No specific forty-acre tract of land is mentioned. For all that appears the deceased might have had several forty-acre tracts "on the south side of the public road." The name of the purchaser is not given. It is apparent that no one could locate the land from what appears on the face of the writings, and the writings do not refer to any external standard of description, whereby it could be identified. As to what land was sold or referred to could be ascertained only by oral evidence.

Geo. Robertson for respondent.

(1) The court's criticism of the letter written from Feger to Hopkins & Ricketts, saying, "go ahead and sell the 40 acres," is error. The testimony shows that this letter was received from Feger in response to a letter from Hopkins & Ricketts to him, notifying him of the sale made of the 88 acres to Hill. When this court says that this letter was "practically no evidence at all," what is meant by the word "practically" is not clear. The letter was either evidence or no evidence, and if it was any evidence whatever, it is for the jury to pass upon its credibility. If Feger wrote that letter or authorized it, then it was competent evidence and authority to make the sale. (2) As to the point that there was no evidence to show that Feger owned only the 40 acres, witness Ricketts, upon that point in the transcript said, "I am not positive, but am sure as I can be that Feger didn't own other land in Audrain county in January, 1900, than the 128 acres." (3) O'Shea v. Rice, 49 Neb., cited by the court, is not an authority in favor of the defendant and is contrary to the rule in Mechem on Agency, sec. 128. It is there said: If the principal desires to ratify the unauthorized act of an agent "he may fully inform himself of the material facts, or he may intentionally assume the risk without injury, or he may deliberately ratify upon such knowledge as he possesses without caring for more." The author cites the following cases in support of these facts: Lewis v. Read, 13 M. & W. 834; Kelly v. Railroad, 141 Mass. 496. But Feger had notice by letter dated the 5th of January of every essential part of the trade. The agent's authority was to find a purchaser for the 40 acres at $ 1,000. The purchaser's name was immaterial, for the agent was limited to no particular purchaser. From the very nature of the contract of agency the name of the purchaser was a matter immaterial to the seller. The price was only essential, and of this he had notice. The law implies that he would convey by general warranty deed, for when he sold he would be expected to convey a good title. Further upon the question of ratification see Rogers v. Kneeland, 10 Wend. 219. (4) The decision in this case is contrary to the following Missouri cases: Moore v. Mountcastle, 61 Mo. 424; Whaley v. Hinchman, 22 Mo.App. 483; Hawkins v. McGroarty, 110 Mo. 446; Greeley & Co. v. Capen, 23 Mo.App. 301; Gelatt v. Ridge, 117 Mo. 554; Porter v. Woods, 138 Mo. 559; Black v. Crowther, 74 Mo. 480. (5) Under the case of Bain v. Wiggins, 139 U. S. and Newton v. Bronson, 13 N. Y., the deed enclosed by Hopkins & Ricketts to Feger for signature, although never signed by him, and containing, as it did, a correct description of the land, may be referred to to help out the defective description in the letters between the agents and Feger, if there be such defect. Under the following recent Missouri cases, the judgment of the circuit court should be affirmed: Smith v. Wilson, 160 Mo. 675; Yoder v. White, 75 Mo.App. 155. The letters between Feger and his agents undoubtedly not only authorized the sale, but Feger's letter to them directing the preparation of the deed, ratify the sale, and the letters taken in connection with the contract which Feger ratified, entered into between the agents and the purchaser, satisfy the Statute of Frauds.

MARSHALL, J. Robinson, J., absent.

OPINION

MARSHALL, J.

This is a proceeding at law to recover four hundred and fifty dollars, damages for alleged breach of contract between the plaintiff and the deceased Lorenz Feger. The claim was presented for allowance against the estate of Lorenz Feger, of which the defendant Fecht is the administrator, and was afterwards appealed to the circuit court of Audrain county, and there tried, resulting in a judgment for the plaintiff for two hundred and twenty-five dollars, from which the defendant appealed to the St. Louis Court of Appeals, where the judgment was reversed, without remanding the cause; but one of the judges of that court being of opinion that the decision therein was in conflict with the decision of the Kansas City Court of Appeals, in Black v. Crowther, 74 Mo.App. 480, the cause was certified to this court, where it now stands for adjudication as in cases of original appeals to this court. [Amendment of 1884 to Const., sec. 7.]

The case has been ably briefed and argued by counsel, and the opinion of the learned judge of the St. Louis Court of Appeals is so full and complete as to make the labor of this court very light in this case.

The facts are fully reviewed and the laws are ably discussed by the St. Louis Court of Appeals (Johnson v. Fecht, 94 Mo.App. 605), and that opinion, as well as the opinion of the Kansas City Court of Appeals with which it is said to be in conflict (Black v. Crowther, 74 Mo.App. 480), must be read in connection with this opinion.

Briefly stated, the facts in judgment here are these:

Lorenz Feger owned a farm in Audrain county, comprising about one hundred and twenty-eight and one-half acres. A public road ran through the farm, leaving eighty-eight and one-half acres on the north side of the road, and forty acres on the south side of the road. In December, 1899, he gave Hopkins and Ricketts, real estate brokers in Mexico, verbal authority to sell the land for him for four thousand dollars. His health being then poor, he went to a sanitarium in St. Louis for treatment. Hopkins and Ricketts sold the eighty-eight and one-half acres, lying north of the road, to one Hill for three thousand dollars and notified Feger thereof. Instead of writing direct to the agents in answer to their letter, Feger on December 31, 1899, wrote to his nephew, William Dawson who lived in Audrain county, saying that he had a letter from Hopkins and Ricketts telling him that they had a buyer for the eighty-eight and one-half acres, for three thousand dollars, and directing him to go to them and have them sell. On receipt of this letter Dawson went to see Hopkins and Ricketts, with the result that they made out a deed from Feger to Hill for the eighty-eight and one-half acres and sent it to Feger to be executed. He executed it, and sent it to Hopkins and Ricketts, but they sent it back to him to be re-acknowledged, which he did, and sent it back to them. In this first letter aforesaid the testimony shows that there was also enclosed a letter from Feger to Hopkins and Ricketts. This letter was shown to be lost, but its contents were shown by parol evidence to be, in substance, "I am glad you have sold the eighty-eight acres; now sell the forty." Accordingly, on January 5, 1900, Hopkins and Ricketts sold the forty acres to the plaintiff herein, for one thousand dollars, of which fifty dollars was then paid to them, and they executed and delivered to the plaintiff a receipt therefor, which recited the sale, the purchase price, the name of the purchaser, and a full description by metes and bounds of the forty acres. On the same day Hopkins and Ricketts wrote to Feger, at St. Louis, saying: "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," etc. The name of the purchaser was not stated, and the above was the only description of the land given. The letter asked whether they should send him a deed for execution or whether he would be at home in a few days. In answer they received a letter dated St. Louis, January 6, 1900, addressed to them saying: "I am just in receipt of your favor of the 5th inst., regarding the sale of the forty acre tract. In reply would say as follows: Have deed made out and send to me for signing, as I can not say definitely when I will return to Mexico," etc. The parol testimony shows that this letter was written and Feger's name signed thereto by a man named Lee, with whom Feger was intimate at the sanitarium. Lee testified that he wrote it at Feger's request, as his amanuensis, and signed Feger's name to it at his direction, and then read it over to Feger before mailing it, as he likewise did other letters for Feger, he being sick. O...