Johnson v. Fecht

• Citation: 68 S.W. 615,94 Mo.App. 605
• Parties: J. T. JOHNSON, Respondent, v. WILLIAM FECHT, Administrator, etc., Appellant
• Decision Date: 13 May 1902
• Court: Court of Appeal of Missouri (US)

68 S.W. 615

94 Mo.App. 605

J. T. JOHNSON, Respondent, v. WILLIAM FECHT, Administrator, etc., Appellant

Court of Appeals of Missouri, St. Louis

May 13, 1902

[Copyrighted Material Omitted]

Appeal from Audrain Circuit Court.--Hon. Elliott M. Hughes, Judge.

REVERSED AND REMANDED, and CERTIFIED TO THE SUPREME COURT.

STATEMENT OF THE CASE.

Lorenz Feger formerly lived in Audrain county, where he died on the seventeenth 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 one hundred and twenty-eight and one-half acres, of which eighty-eight and one-half acres lay to the north of a road and forty acres to the south. In December, 1889, 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 four thousand dollars. They sold the portion north of the road to T. B. Hill for three thousand dollars 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.

"Yours truly,

(Signed) "L. FEGER."

On this letter being shown to them, Hopkins & Ricketts made out a deed conveying the eighty-eight and one-half 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 re-acknowledgment. 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 fifth day of January, Hopkins & Ricketts made a contract with the plaintiff, Johnson, to sell him the forty acres for one thousand dollars, of which he paid fifty dollars 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 acres in the northwest corner of the southwest fourth of the northeast quarter; twenty acres, the north part of the southeast fourth of the northwest quarter and nineteen acres, being all that part of the sixty-one acres the west part and north part of the north half of the northwest quarter that lies south of the county road, containing in all forty and one-half acres more or less; all in section twenty-two, township fifty-one north, range nine west, of the fifth P. M., and being all that part of the one hundred and twenty-eight and one-half acre 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. 5, 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. 6, 1900.

"Messrs. Hopkins & Ricketts, Mexico, Mo.

"Gents: I am just in receipt of your favor of the 5th inst., regarding the sale of the forty-acre tract of land. 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 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 forty acres of land to be executed:

"Mexico, Mo., Jan. 8, 1900.

"Mr. Lorenz Feger, St. Louis, Mo.

"Dear Sir: We received the deed to Amanda Hill duly acknowledged. We expected to close the deal 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 the 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 have 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 sixteenth 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 sixth 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 letter dated January 6, 1900, without any inquiry of the agents, Hopkins & Ricketts, as to the terms of said sale, then said letter is not only a ratification of what Hopkins & Ricketts had done as his agents, but it was a ratification of the contract made by them, and is as binding upon him and his estate as if he had made the contract himself, and if you find that said Feger either wrote said letter or authorized the same, then the defendant is liable on the said contract for breach of contract and damages, and you will return a verdict for the plaintiff."

"The court instructs the jury that if you find that the said deceased, L. Feger, wrote or authorized the writing of the letter dated January sixth and the same was received by Hopkins & Ricketts, then the contract of sale made the fifth of January was ratified, and everything Hopkins & Ricketts had done regarding said sale has become the act of said L. Feger, and if you so find, you will disregard the letter dated January 8, 1900, and read in evidence by defendant."

The defenses were grounded on the statute of frauds, and were first, that the letter of January the sixth did not bind Feger because Lee signed his name, without written authority to do so; second, that said letter did not constitute a ratification of the contract made by Feger's brokers with Johnson unless Feger knew when it was written who was the vendee; third, that neither that letter, nor any other in the correspondence, described the land to be sold and, hence, constituted neither an authority to Hopkins & Ricketts to make a contract of sale, nor a ratification of the contract they made; fourth, that Feger's acts did not ratify the sale because he acted...