Massey v. Butts
| Decision Date | 06 April 1920 |
| Citation | 221 S.W. 153,204 Mo.App. 55 |
| Parties | MRS. FRANK H. MASSEY, Administratrix of the ESTATE OF ROBERT D. MASSEY, Deceased, Appellant, v. CORNELIUS L. BUTTS and WILLIAM W. BUTTS, doing Business as the BUTTS REALTY COMPANY, Respondent |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis.--Hon. Thomas L. Anderson, Judge.
AFFIRMED.
Judgment affirmed.
Warwick M. Hough and Lee W. Hagerman for appellant.
(1) When the contract, signed by defendants, per Hobbs, their agent, on April 21, 1909, and signed by Massey on April 24 1909, was executed by the parties, neither defendants nor Hobbs were the agents of the owner, Young. Under section 2783, Revised Statutes of Missouri, 1909 (the Statute of Frauds), it is provided that "No contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract." Since this is the law governing the situation, and since the evidence is undisputed (from Young's own testimony) that no such authority, in writing, had been given by him prior to April 27, 1909, there was neither in fact nor in law any relation of principal and agent between Young and defendants at the time the said contract was executed between Massey and defendants. Johnson v. Fecht, 185 Mo. 342-3; Hawkins v McGarity, 110 Mo. 546; Roth v. Goerger, 118 Mo 556; Greening v. Steele, 122 Mo. 287, 294. (2) Since the above-said contract was made by defendants as agents when in fact they were not agents, they bound themselves to the performance of the terms thereof. Hence even if Massey knew who the owner was, the defendants were none the less bound. Tailoring Co. v. Keeley, 58 Mo.App. 495; Wright v. Baldwin, 51 Mo. 269; Chouteau v. Paul, 3 Mo. 260. (3) Under the evidence in this case, even if Young had been defendants' principal, the name of the principal was undisclosed at the time when the defendants made the above-said contract, and hence they were bound to the terms thereof; for, where the name of the principal is undisclosed and the contract purports to be made by an agent for such undisclosed principal, the agent himself, as well as the principal, is bound thereby. McClellan et al. v. Parker, 27 Mo. 162; Lapsley v. McKinstry, 38 Mo. 245; Thompson v. McCullough, 31 Mo. 224; Mfg. Co. v. Montgomery, 74 Mo. 103; Porter v. Merrill, 138 Mo. 555; Mechem on Agency (2 Ed.), sec. 1410. Where the contract shows on its face that there is a principal, but fails to disclose his name, such a contract is a contract for an undisclosed principal, and the fact that it is evident that there is a principal does not affect the question of liability, but nevertheless the agent is liable. Thompson v. McCullough, supra; Mechem on Agency, (2 Ed.), sec. 1411; Pike Sons & Co. v. Ongley & Thornton, 18 Q. B. Div. 708. If the agent wishes to avoid personal liability he must disclose his principal at the time of, or before, entering into the contract. Porter v. Merrill, supra, 558; Mechem on Agency (2 Ed.), secs. 1413-14; Argersinger v. MacNaughton (N. Y.), 11 Am. St. Rep. 687. It is no defense that the agent is known to be in the business of an agent or broker. Mechem on Agency (2 Ed.), sec. 1410; Holt v. Ross, 54 N.Y. 472. The fact that the contract may be binding on the principal will not relieve the agent. Mechem on Agency, sec. 1415. Under the above authorities, applied to the facts of this case, it is evident that defendants rendered themselves directly liable for the performance of the terms of the contract, even if they actually represented Young. (4) Under the above authorities and under the facts of this case defendants were bound to the plaintiff whether the name of the owner, Young, was disclosed or undisclosed at the time the above-said contract was made. The defendants were, however, bound for another and an additional reason: for, when read from its four corners in the light of the surrounding circumstances, the contract must be construed to have been intended by Massey and the defendants to make defendants stakeholders of the earnest money until it was determined whether the sale of the property was going to be completed or not. Consequently the defendants are liable in this case even if the name of the owner, Young, had been disclosed to Massey at the time the contract was made, and even if the law of undisclosed principal should be held not to apply. Martin v. Allen, 125 Mo.App. 636; Coble v. Dennison, 151 Mo.App. 319; Simons v. Long, 101 P. 1070 (Kans., 1909); Meade v. Altgeld, 136 Ill. 298; Goodrich v. Wood, 133 Ill.App. 483; White v. Taylor, 131 Mich. 543; Reed v. Riddle, 48 N. J. Law 359; Burroughs v. Skinner, 5 Burr 2637 (England, 1894); Gray v. Gutteridge, 3 Carrington and Pa. 40 (England, 1827); Furtrade v. Lumley, 6 Times L. R. 168 (England, 1890). (5) Where the intent of an instrument is discoverable from the instrument itself, extrinsic evidence is not admissible to show any other intent, even though the word "agent" is added to the signature. 1 American and English Encyclopedia of Law (2 Ed.), p. 1053. (6) It cannot be maintained in this case that either the defendants or their agent, Hobbs, were the agents of Massey, for neither of them had any authority in writing to purchase the property for Massey. R. S. 1909, sec. 2783; Schlanker v. Smith, 27 Mo.App. 516; Allen v. Richard, 83 Mo. 55; Calligan v. Winters, 56 Mo. 241. (7) When the owner, Young, signed his name to the approval clause on the paper he did not thereby become a party to the contract with Massey. By such action he merely signified to the defendants, the Butts Realty Company, that he would be willing to make such sale if presented to him during the time specified in the contract. Therefore the signature of Young to the approval clause was in the nature of an officer on the part of Young to make a sale on the terms indicated in the contract, which offer would only become binding on Young when the sale was actually ready to be executed.
James P. Maginn for respondent.
(1) The only obligation on Butts Realty Company agents, was to obtain the approval of the owner within ten days or to refund the earnest money. The provisions of the contract as to the title being perfect, and to be conveyed by warranty deed free from liens and encumbrances, that if the title be found imperfect and cannot be perfected within a reasonable time, the earnest money was to be refunded and a fee not to exceed $ 15 be paid to the purchaser, and the sale to be off; the closing of the sale within thirty days from date of approval, or on or before May 21, 1909, the forfeiture of the earnest money to the seller, if the purchaser fail to comply with the terms of the contract by paying the balance of the purchase money, in cash, are plainly the terms binding on the owner and purchasers respectively, and solely, when the owner approves the sale, and not till then. (2) Whether defendants had any authority as agents of Young, the owner, when they signed "Exhibit A," and when Massey signed it is immaterial. Massey knew they had no such authority; knew the Mercantile Trust Company had such authority and sent the defendants the money, as earnest money to be paid by them, as such, to the Mercantile Trust Company as the owner's agents, in order to obtain a binding contract on the owner by his approval, until which time, Massey merely had the defendants' obligation to return the money, if such approval was not obtained. (3) Under the evidence in this case there is no question of the defendants binding themselves for want of a principal. The express terms of the contract, signed by the defendants, declare the principal to be the man who owns the property described in the contract, and declare until he binds himself to the provisions of the sale, there shall be no contract of sale. (4) Moreover, the evidence is amply sufficient to justify the court below in finding Massey knew who the owner was, even by name, prior to his signing "Exhibit A." There is no question properly in the case of "undisclosed principal." The contract expressly stipulates that the owner of the property must disclose himself and bind himself by his signature to the terms of sale, or there shall be no sale. (5) There is no basis for the application, under the evidence in this case, of the doctrine of Martin v. Allen, 125 Mo.App. 636, and that of the other authorities, cited under plaintiff's Point 4, that defendants become bound to a contract to become stakeholders of the earnest money, until it was determined whether the sale was going to be consummated or not by the vendor and vendee. Martin v. Allen, 125 Mo.App. 636; And authorities cited by Appellant under Point 4. (6) Where the agent, acting in good faith, fully discloses to the other party, at the time all the facts and circumstances touching the authority under which he assumes to act, so that the other party from such information or otherwise, is fully informed as to the existence and extent of his authority he cannot be held liable. Mechem on Agency, sec. 546, citing numerous cases, among them: Michael v. Jones, 84 Mo. 578; Western Cement Co. v. Jones, 8 Mo.App. 373; Humphrey v. Jones, 71 Mo. 62. (7) The judgment of the court below was for the right party; and under the statute, prohibiting the reversal of a judgment except for error materially affecting the merits of the action, the consideration of refused declarations of law is unnecessary where the verdict is manifestly for the right party. Broms v. The City of Liberty, 131 Mo. 372; Burnett v. Telegraph Co., 39 Mo.App. 599; Fontaine v. Boatmen's Savings Ins., 57 Mo. 552. (8) "Exhibit A" and the receipt of Mercantile Trust Company for the earnest money, followed by the preparation of "Exhibit 4" of plaintiff's, being identical...
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