Lingenfelder v. Leschen
| Decision Date | 31 March 1896 |
| Citation | 34 S.W. 1089,134 Mo. 55 |
| Parties | Lingenfelder, Appellant, v. Leschen |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.
Affirmed.
Edmond A. B. Garesche for appellant.
(1) The measure of damages in a suit by a vendee against a vendor for breach of contract of sale of land, is the difference between the purchase price of the land sold, and its value when, under the terms of the agreement between the parties the trade should be closed. Kirkpatrick v. Downing, 58 Mo. 32. And the question of supposed or real defect in the title of the vendor, or of his good faith, or supposed want of good faith in the transaction, are not to be considered in estimating damages, in the absence of any provision in the contract to that effect. Hartzell v. Crumb, 90 Mo. 629; Hotel Company v. Sauer, 65 Mo. 279; Matheny v. Stewart, 108 Mo. 78; Hopkins v. Grazebrook, 6 B. & C. (2) A person who assumes to contract as agent must see to it that his principal is legally bound by his act; for if he does not give a right of action against his principal, he will be himself personally responsible. Story on Agency [9 Ed.], sec. 264; Lapsey v. McKinstry, 38 Mo. 245; Wright v. Baldwin, 51 Mo. 269; Shell v. Stephens, 50 Mo. 375; Mantz v. Maguire, 52 Mo.App. 136; Myers' Tailoring Co. v. Keeley, 58 Mo.App. 491; Zeigler v. Fallon, 28 Mo.App. 298. And where one falsely holds himself out to another as an agent, he is liable for any loss that happens by reason of his lack of authority. Mechem on Agency [Ed. 1889], sec. 543. As where he represents, either actually or impliedly, that he has authority to act for another, when in fact he has no such authority. Bush v. Cole, Cases on Agency (Mechem), 650; Simmons v. Moore, Cases on Agency (Mechem), 505; Kroeger v. Pitcairn, Cases on Agency (Mechem), 501. And it can make no difference that in so acting he did so in the sincere belief that he had authority, although in fact he had none; he will still be liable to a third party who deals with him in ignorance of his want of authority, if he suffers loss in consequence, upon the ground of an implied warranty of authority. Mechem on Agency [Ed. 1889], sec. 542; White v. Madison, 26 N. Y. (12 Smith) 117; Collen v. Wright, 7 Ell. and Bla. 301; Collen v. Wright, 8 Ell. and Bla. 647. And the rule is the same where, knowing he has no authority, he makes a contract implying its possession. Mechem on Agency [Ed. 1889], sec. 544. (3) And where one represents himself as an agent to sell land when in point of fact he has no authority to bind his alleged principal, the rule of damage includes expense of examining title, expenses of suit against owners for either specific performance or for damages on account of their refusal to convey, and also damages for loss of bargain. 2 Sedgwick on Damages [8 Ed.], sec. 835, and authorities cited; In re Palace Co., 24 Ch. Div. 367; Sutherland, Damages [2 Ed.], sec. 798, and cases cited; Skaaras v. Finnegan, 31 Minn. 48. (4) When respondent tendered performance of his principal's contract, he had no title. First. Because at that time the trustee had either executed or delivered to him a deed to the land. Second. Because the sale under the deed of trust was had upon nineteen days' notice, when the statute (R. S. 1889, sec. 7093) requires at least twenty days' publication. Bank v. Stumpf, 73 Mo. 315. Third. Because the sale under the deed of trust was irregular in that it was made at an unusual hour for such sales, and if appellant had accepted its tender and that of the quitclaim deed of the heirs as performance he would, in order to perfect his title, have laid himself liable to the payment of the judgments against the Tiekemeier boys. Fourth. Because only one of the trustees had acted, when the conveyance was to two, and no proof was made of the inability or refusal of the other to join in the foreclosure. 1 Perry on Trusts [4 Ed.], sec. 412. (5) The rule declared in the line of authorities relied upon by respondent (Hammond v. Hannin, 24 Mich. 374; Fleareau v. Thornhill, 2 W. Bl. 1078) is no longer the one upheld in this state. Hartzell v. Crumb, 90 Mo. 629. The weight of modern authority greatly preponderates against the enforcement of the rule in Fleareau v. Thornhill in its broadest sense. See Hopkins v. Lea, 6 Wheat. (19 U.S.) 109; Lawrence v. Chase, 54 Me. 196; Case v. Wolcott, 33 Ind. 5; Brigham v. Evans, 113 Mass. 538; Harrison v. Charlton, 37 Iowa 134; Camell v. McLean, 6 Har. & G. (Md.) 297; Barbur v. Nicholls, 3 R. I. 187; Gale v. Dean, 20 Ill. 320; Dustin v. Newcomer, 8 Ohio 49; Pumpelly v. Phelps, 40 N.Y. 59; Drake v. Baker, 34 N. J. L. 358.
(1) The instruction given by the court was proper because it clearly appears from plaintiff's own evidence that even though Leschen did not have written authority at the time the contract was made, yet subsequently, with full knowledge of all the facts his principal ratified the bargain, and became liable to plaintiff to the same extent as though the original authorization had been in writing, and there is no evidence that she ever denied the contract or sought in any way to avoid its obligations, and in an action for specific performance properly conducted could have been required to execute a deed. Story on Agency, secs. 265, 239, 244, 251; Mechem on Agency, secs. 110, 144, 145, 134, 140; Wharton on Agency, secs. 62 to 76, 85 to 92; Bank v. Gay, 63 Mo. 33; Cravens v. Gillilan, 63 Mo. 28; Dow v. Spenny, 29 Mo. 386; Chamberlain v. Robertson, 31 Iowa 409; Ballou v. Talbot, 16 Mass. 460; Roby v. Cossitt, 78 Ill. 638; State v. Torinus, 26 Minn. 1; Clark v. Van Riemsdyk, 9 Cranch. 242; Chamberlain v. Collinson, 45 Iowa 429; Hawkins v. McGroarty, 110 Mo. 546; Roth v. Goerger, 118 Mo. 556. (2) The measure of damages as laid down in the instruction given at defendant's request, was entirely proper in the absence of any authority to plaintiff to bind his principal. Gestring v. Fisher, 46 Mo.App. 603; Hammond v. Hannin, 21 Mich. 374, and cases cited; Matheny v. Stewart, 108 Mo. 73; Kirkpatrick v. Downing, 58 Mo. 32; Jones v. Sharp, 7 Mo. 71; Clark v. Conway, 23 Mo. 437; Dickson v. Desire, 23 Mo. 151; Tapley v. Le Beaume, 1 Mo. 393.
Action by plaintiff to recover from defendant $ 5,009 which he claims to be the difference in value of certain real property in the city of St. Louis, and the price at which it was sold to him by defendant.
At the time of the sale defendant had no written authority from the owners of the property to sell the same, but claims that his acts in so doing were subsequently affirmed and ratified by Mrs. C. Tiekemeier for whom he acted, but who only had a life estate in the property. The contract between plaintiff and defendant was entered into on the twenty-fifth day of May, 1892, and is as follows:
"No.
Real Estate Office of Noonan
Investment Company, 800
Chestnut St.
At the time of this contract the title in the property was in the heirs of Frederick Tiekemeier, deceased, viz.: Anna Lovrine, William, Henry, and Metta, subject to the life estate of their mother, Mrs. Tiekemeier, and a deed of trust executed by her and her husband to Albrecht Rasfeldt and William H. Beneke, trustees for Joseph Dormitzer, on the sixteenth of September, 1878, to secure a principal note for $ 10,000, and interest to accrue, between the date of the deed and maturity of the note, which was five years after its date.
It seems that judgments were rendered in the circuit court of the city of St. Louis, one against Henry F. Tiekemeier in favor of Theodore Bleker for $ 414, and the other against Henry F., and William H. Tiekemeier, for $ 819.61. One of them was rendered on the eleventh day of November, 1889, and the other November 25, 1889. These judgments...
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