Johnson v. McGruder

• Decision Date: 31 January 1852
• Citation: 15 Mo. 365
• Parties: JOHNSON v. MCGRUDER.
• Court: Missouri Supreme Court

15 Mo. 365

JOHNSON

v.MCGRUDER.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM MONITEAU CIRCUIT COURT.

EDWARDS, for Appellant. The plaintiff and appellant insists that there are three positions, under either of which he is entitled to a specific performance of his contract with the defendant, and a reversal of the judgment of the court below. 1. That Gamer was duly authorized as his, McGruder's, agent, to sell said land, and as such agent did sell the same to complainant. First then as to the appointment of the agent. It is not necessary that the appointment of an agent to sell real-estate should be in writing. A parol appointment is sufficient. See Clinan v. Coke, 1 Sch. & Lef. 22; Coles v. Trecothwick, 9 Vesey, jr., 250; Story on Agency, 50; 1 Greenl. Ev. 269; Story on Agency, 154; 2 Kent, 612. 2. An agent may do all things touching the subject matter of his agency which the principal could do, unless the contrary manifestly appears. Story on Agency, §§ 57, 60, 85, 97, 160, note a; 2 Kent, 617. If Gamer sold said land as stated in the bill, and informed McGruder of such sale, and he did not disavow the sale in a reasonable time, after notice of the sale, then he, McGruder, is bound by the act of Gamer. 14 Serg. & Rawle, 27; 12 Johns. 300; 1 Johns. Ch. R. 110; 1 Vesey, 509. 2. If Gamer was appointed by McGruder his agent for the sale of said land and as such agent did sell as stated in the bill, is the instrument of writing, signed by Gamer, and marked as exhibit No. 1, such a memorandum as will take the case out of the statute? It is contended by the appellant, that if the language used by Gamer is not such as clearly to charge him alone, and it can be ascertained by said instrument that Gamer intended to act for McGruder, then McGruder will be bound. New England Ins. Co. v. De Wolff, 8 Pick. 566. It is only in cases of deeds that the name of the principal must be signed by the agent. Story on Agency, § 154. It is sufficient if all the contract can be clearly made out from all the writings of the party. 1 Greenl. Ev. § 268. Although the writing signed by Gamer, evidencing the sale of said land, is not such a memorandum as is required by the statute of frauds, the sale of said land by Gamer, as the admitted and recognized agent of the defendant--the possession of the land by Kelly and his family, for whose use said land was purchased, for a number of years, the payment of the purchase-money to Gamer as the agent of McGruder; the receipt of a part of the purchase-money by McGruder, and also, the improvements made on the land by Kelly and his family, are such a part performance as will take the case out of the statute of frauds. Sugden on Vendors, 133, 135, 136, 153.

HAYDEN, for Respondent. 1. The contract for the sale of the land, as set out in the bill, does not appear from the statements therein, to have been made by defendant, McGruder, personally, or by his authorized agent binding him to convey the land as therein prayed for; but, on the contrary, the same purports to be the personal and individual contract of Gamer himself. 2 The contract, if construed to have been intended by Gamer and Johnson as the contract of McGruder, was made without any legal authority from McGruder to make the same, and it is therefore not binding upon him. See §§ 1, 4, title Frauds and Perjuries, pp. 529, 530, Digest 1845; title Conveyances, 226, 3. The answers of the defendant deny the authority of Gamer to sell the land and receive the purchase-money therefor as his agent, and show that the only agency given by him to Gamer was to negotiate a sale, and for the purchase-money to be paid to Thomas McGruder by the purchaser, and the proofs in the cause corroborate the answer instead of negativing them.

SCOTT, J.

This is a bill in chancery, filed by the appellant, as trustee for the wife and children of W. J. Kelly, against the appellee for relief. It is substantially alleged, that about the 1st of February, 1846 (it should be 1838), the appellant purchased from one W. S. Gamer, as agent for the appellee, several parcels of land, containing in the aggregate 160 acres for the sum of $325. That at the time of the sale, the said Gamer, as agent, executed and delivered to the appellant a writing obligatory, reciting the contract aforesaid, and thereby bound himself as agent for the appellee to convey to the appellant, or cause to be made unto him a deed for the premises sold whenever thereunto requested. That by the said writing obligatory it was stipulated that W. J. Kelly, above named, the husband and father of the cestui que trusts, above mentioned, would pay within twelve days from the execution of the said writing the sum of $260, which was accordingly done. That Gamer, the agent, immediately put the cestui que trusts in possession of the lands sold, who have continued thereon until the present time. That the said appellee, McGruder, publicly represented that the said Gamer was his agent and was authorized to dispose of the premises in controversy. That about the 20th of April succeeding the sale, the said appellee wrote a letter to his said agent, approving the disposition that had been made of the land, and afterwards received a part of the purchase-money. That in November, 1842, he obtained a judgment at law against the said W. J. Kelly, the tenant in possession of the premises in dispute. That the agent, Gamer, has since departed this life, and P. Wilson and Adelia Gamer, wife of the said agent, have taken upon themselves the burden of administration on his estate. A prayer is then made for a specific performance of the contract above set forth.

A demurrer to the bill was overruled, and thereupon the appellee filed his answer thereto, in which it is substantially alleged that the appellant purchased of W. S. Gamer the land mentioned in the bill for the consideration therein expressed; that Gamer executed the writing and paid the money as is charged in the bill. That he was in the year 1837, and is now the owner of the land in controversy, and being a resident of Kentucky, and about to return thither, he requested Gamer to prevent trespasses on his land, who consented to do so, and then inquired of the appellee if he would sell it, to which he replied that he would take for it the sum of $300, in cash, and that he, Gamer, or his brother, Thos. McGruder, of Howard county, might negotiate the sale, with the understanding that the purchase-money should be paid to his said brother. That Gamer might refer any person wishing to purchase to his brother, or he might sell himself, sending the purchaser to his brother to receive the purchase-money. That the foregoing is the only conversation he ever had with Gamer, touching the sale of his land, and furnishes the only authority with which he was clothed to act in his behalf in regard thereto. That he never represented that the said Gamer was his agent, otherwise than is above stated. That he returned to Kentucky in the fall of 1837, and was not in Missouri again until 1840, and never saw Gamer after the above recited conversation in 1837. That in the spring of the year, 1838, he received a letter, purporting to be written by Gamer which stated that he had negotiated a sale of the land to W. J. Kelly for the sum of $325, and that the money was ready to be paid to his brother Thomas, so soon as a deed should be sent out. This letter is now lost or mislaid. That some time in the month of April, 1838, he wrote a reply to Gamer (the only letter he ever wrote to him) in which he expressed his satisfaction with what Gamer represented he had done, and at the same time informed his brother, by letter, what had been done and inclosed to him a deed which was to be delivered on the payment of the purchase-money. That in the fall of 1838 his brother was on a visit to Kentucky, and whilst there, handed to him the sum of $25, saying it was paid to him by Pleasant Wilson as a part of the purchase-money of the land. That the said sum is all that he has received, and that he would not have taken it unless he had believed that the balance would have been paid in a short time. The possession of the land by Wm. J. Kelly and his family, from the year 1838, is admitted by the appellee, though he professes to be ignorant of the person by whom it was given. An amended answer insists on the statute of frauds and perjuries as a bar to the relief sought by the bill. On replication being filed the cause was set for hearing.

On the trial, a witness testified that in 1837 or 1838, he heard the appellee authorize...