Matlack v. Paregoy
| Citation | 173 S.W. 8,188 Mo.App. 95 |
| Parties | ELLWOOD V. MATLACK, Defendant in Error, v. E. C. PAREGOY, J. B. McCULLOUGH and CHARLES W. EDWARDS, Plaintiffs in Error |
| Decision Date | 30 January 1915 |
| Court | Court of Appeal of Missouri (US) |
Error to the Jasper County Circuit Court, Division Number Two.--Hon. David E. Blair, Judge.
AFFIRMED.
Judgment affirmed.
Fred Kelsey, H. W. Currey and George V. Farris for plaintiff in error.
(1) All agencies carry such powers as the principal has, by his acts or by negligent omissions, or by acquiescence, caused or permitted persons dealing with the agent reasonably to believe the principal had conferred. Mechem on Agency (2 Ed.), sec. 720 and 721, cases cited; Fanning v Cobb, 20 Mo.App. 577; DeBaun v. Atchison, 14 Mo. 543; Rice v. Groffman, 56 Mo. 434; Cuples v Whelan, 61 Mo. 583; Grover, etc. v. Polhemus, 34 Mich. 247; Conn. Mut. Life Ins. Co. v. Pult, 45 Mich. 113; Kiley v. Forsee, 57 Mo. 390; Bronson v. Chappell, 12 Wall. 681. (2) When Matlack learned that his agent had executed a written contract to Paregoy and associates reducing the royalty, for the term of the lease, to twenty per cent, it was his duty to notify Paregoy and associates that he disapproved said act of his agent. Failing to do so, and availing himself afterwards of the contract of Paregoy and associates, knowing that they were relying on the contract of reduction, when they made the contract with Seals, which he consented to, he ratified said act of his agent. Mary v. Trust Co., 138 Mo. 278, 282; Bless v. Jenkins, 129 Mo. 647; Smith v. Smith, 62 Mo.App. 596; Keeley v. Salisbury, 33 N.Y. 648; Ilgenfritz v. Railroad, 169 Mo.App. 652, 657; Ballard v. Nye, 72 P. 156; Phillip v. Phillip, 127 P. 346; Day v. Merrick, 138 N.W. 400; Triller v. Sadle, 138 N.W. 728; Fleming v. Sherwood, 139 N.W. 101.
Thomas Hackney for defendant in error.
(1) The authority of an agent to make a lease for more than one year must be in writing. Sec. 2781, R. S. 1909. (2) A like written authority is required by the statute where the agent assigns, grants or surrenders a lease. Sec. 2782, R. S. 1909. (3) Contracts required by the Statute of Frauds to be in writing cannot be modified by parol. Rucker v. Harrington, 52 Mo.App. 481; Warren v. Mayer Mfg. Co., 161 Mo. 112. (4) Where the authority of an agent to execute a contract must under the Statute of Frauds be in writing in order to bind the principal, so a ratification by the principal (absent acts amounting to equitable estoppel), must likewise be in writing. Hawkins v. McGroarty, 110 Mo. 546; Johnson v. Fect, 185 Mo. 345. (5) The only authority ever conferred by the plaintiff on Robinson, as his agent, including all the writings, conversations and dealings between them, was that of a mere caretaker of the plaintiff's property, and as such agent, Robinson had no express nor implied authority to reduce plaintiff's royalty and give up one-half of the plaintiff's property rights. The authority conferred by the plaintiff on Robinson, and the duty owed by Robinson to plaintiff, comprehended only conservation and not destruction. 31 Cyc. p. 1388; Burks v. Stam, 65 Mo.App. 455. (6) The burden was on the defendants to show that Robinson did have authority to make the reduction, and this they failed to do. Knoche v. Whiteman, 86 Mo.App. 573.
FARRINGTON, J.--The defendant in error, Ellwood V. Matlack, was plaintiff in the trial court, and the plaintiffs in error were the defendants. In this opinion we will refer to Matlack as the plaintiff and Paregoy and others as the defendants.
A petition was filed by the plaintiff against Elizabeth F. Anderson, administratrix of the estate of E. L. Anderson, deceased, Elizabeth F. Anderson individually, Corrie Cole, Homer Seals, H. P. Sewell, E. C. Paregoy, J. B. McCullough and Charles W. Edwards as defendants, seeking to establish plaintiff's title to a mining lease and effect the collection of certain royalties accruing from the mining of said land. The petition alleged and the evidence sustains the finding of the court that the Anderson Mining Company, composed of Elizabeth F. Anderson, administratrix of the estate of E. L. Anderson, Elizabeth F. Anderson and Corrie Cole, had a first lease on the lands mentioned in the evidence, a lease having been made to the Anderson Mining Company on a tract known as the Northern land. The Anderson Mining Company on June 4, 1909, executed and delivered to plaintiff a mining lease on said land for a term ending January 14, 1918, at fifteen per cent royalty, under which the plaintiff was let into possession. On May 11, 1911, plaintiff executed and delivered to Paregoy and his associates a sublease on these lands for a term ending January 14, 1918, at twenty-five per cent royalty. The lease from plaintiff to Paregoy and associates required continuous mining, and contained a provision against assignment or subleasing without plaintiff's consent. In September, 1912, Paregoy and his associates assigned this sublease to Burke & Kerzey; the consent of plaintiff thereto, however, was not obtained until November 2, 1912, at which time plaintiff executed an instrument in writing consenting to the assignment to Burke & Kerzey and an assignment by them to Homer Seals, who associated with himself in the sublease H. P. Sewell. The condition of the consent and assignment to Seals and Sewell was that plaintiff be paid twenty-five per cent royalty and that all ore checks should be delivered to the Conqueror Trust Company or the Anderson Mining Company and the proceeds divided, twenty-five per cent to the plaintiff and seventy-five per cent to Seals and Sewell. Seals and Sewell mined the land and turned ore checks over to the Anderson Mining Company for a large quantity of ore, amounting in round numbers to about forty thousand dollars. The Anderson Mining Company appropriated fifteen per cent of the amount, which it had a right to as its royalty from the Matlack sublease, turned seventy-five per cent of the amount over to Seals and Sewell, and retained ten per cent which it refused to pay either Matlack or Paregoy and his associates, McCullough and Edwards. The petition of plaintiff sets up that he is entitled to all of this ten per cent and shows that defendants Paregoy, McCullough and Edwards are claiming five per cent of it.
Seals and Sewell filed an answer admitting the leases and assignments set forth in plaintiff's petition. The Anderson Mining Company with defendants other than Seals and Sewell joined in an answer alleging that on September 24, 1912, the plaintiff by an instrument in writing reduced the royalty named in the lease (twenty-five per cent) to Paregoy and associates to twenty per cent. This answer also avers that relying on the reduction of royalty by W. J. Robinson, the agent of plaintiff, from twenty-five to twenty per cent, in their lease from plaintiff, they sub-leased the land to Burke & Kerzey, who afterward assigned their rights to the present operators, Seals and Sewell, and further pleaded a ratification by plaintiff of Robinson's act in reducing the royalty.
The plaintiff's reply consisted of a general denial of allegations of the several answers, and denied under oath the execution of the instrument purporting to reduce the royalty from twenty-five to twenty per cent.
During the hearing of the cause the Anderson Mining Company paid to the plaintiff one-half of the royalty collected up at that time. The decree established plaintiff's right to the other five per cent held by the Anderson Mining Company, and neither the Anderson Mining Company by the individuals composing it nor Seals and Sewell appeal from the judgment of the trial court. This narrows the question involved here to the right of plaintiff to claim the five per cent in the hands of the Anderson Mining Company as against Paregoy, McCullough and Edwards, and the issue presented here is whether or not a written instrument dated September 24, 1912, executed by W. J. Robinson as agent of the plaintiff, reducing the royalty in plaintiff's lease from twenty-five to twenty per cent, is binding on the plaintiff.
The only writing that Robinson had from the plaintiff vesting any authority whatever in him is contained in a letter dated February 16, 1910, written while plaintiff was en route from St. Louis to New York. The letter is as follows (omitting the letterhead of the railroad company on whose stationery it was written):
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