McClure v. Ullman

• Citation: 77 S.W. 325,102 Mo.App. 697
• Parties: McCLURE, Appellant, v. ULLMAN, Respondent
• Decision Date: 01 December 1903
• Court: Court of Appeal of Missouri (US)

77 S.W. 325

102 Mo.App. 697

McCLURE, Appellant, v. ULLMAN, Respondent

Court of Appeals of Missouri, St. Louis

December 1, 1903

Appeal from Greene Circuit Court.--Hon. J. T. Neville, Judge.

AFFIRMED.

STATEMENT.

The evidence on the part of plaintiff is that defendant owned a vacant lot in the city of Springfield, Missouri, which Milton McClure, the husband of plaintiff, wanted to purchase, the purchase price to be furnished partly by himself and partly by plaintiff, conveyance to be made to plaintiff, if her husband should succeed in making the purchase. Milton McClure had had a little trouble with defendant about another lot and did not believe that the defendant would sell him the lot. McClure was a real estate agent and known to be one by the defendant. McClure got Z. T. Bradley, another real estate agent, to consent to let him use his name as the purchaser provided he could make a deal with the defendant. After this arrangement with Bradley, McClure called on defendant in the capacity of a real estate agent and got defendant to name a price at which he would sell the lot, telling him he had a prospective purchaser for it. Defendant named his price at $ 4,000. McClure then said to him, "Now, what is there in it for me, I am an agent," and he said, "I wouldn't pay you more than twenty-five dollars. " McClure went away but in a short time returned to defendant and paid him twenty-five dollars earnest money and took from him the following receipt and contract:

"Springfield Mo., April 24, 1901.

"Received of Z. T. Bradley $ 25 to apply to payment of purchase price of four thousand dollars for the following described lot fronting on College street in said city to-wit: beginning one hundred and forty feet east of the northwest corner of lot 31 of block 11, the same being the northwest corner of D. C Dade's brick store building fronting north on said College street, thence south (with the variations of said lot as heretofore conveyed by D. C. Dade), to a point midway between the south line of College street and the north line of South alley of Pickwick street, thence west twenty feet, thence north to the south line of College street, thence east with south line of College street twenty feet to point of beginning. Abstract of title to be furnished by the undersigned showing title to be well vested in fee simple in said L. Ullman. Title to the lot aforesaid to be conveyed by good and sufficient warranty deed to Z. T. Bradley or to such person as he may name as grantee. Said deed to convey the right and privilege to use the west wall of the Dade brick building aforesaid without cost or compensation. Balance of purchase price to be paid on execution and delivery of deed aforesaid. Same to be consummated within a reasonable time from the date hereof.

(Signed) "L. ULLMAN."

Afterwards there was some controversy about who should pay the taxes on the lot for a certain year. McClure agreed to pay these taxes. Then came up some doubt as to the exact dimensions of the lot. This doubt was not solved, but McClure tendered the balance of the purchase price and demanded a deed to be made to his wife, the plaintiff (the contract of sale and purchase having been assigned to her by Bradley). Defendant refused to receive the purchase money or to make a deed. Plaintiff then sued on the contract to recover damages for breach thereof.

The evidence is that the lot was, at the time of the contract for its sale, worth from $ 4,500 to $ 5,000.

The answer was a general denial.

At the close of plaintiff's evidence, the court instructed the jury to return a verdict for defendant. A motion for new trial was filed but overruled, whereupon plaintiff appealed.

Judgment affirmed.

White & McCammon for appellant.

(1) The peremptory instruction given by the court was based on the theory that plaintiff's husband was acting in her behalf to buy, and also as agent of Dr. Ullman to sell, and that the contract made by defendant could not, therefore, be enforced; that such fact invalidates the contract. To this view there are several answers, each sufficient and complete. (a) There was no such defense made in the pleadings. The answer was a general denial only, and the rule is "If defendant intends to rely upon any matter which goes to defeat or avoid plaintiff's action he must set it forth. Pattison's Mo. Code Pleading, secs. 551, 552 and 622; Sybert v. Jones, 19 Mo. 86; Moore v. Ringo, 82 Mo. 468; Musser v. Adler, 86 Mo. 445; Cummiskey v. Williams, 20 Mo.App. 606. Nor will an appellate court consider an unpleaded defense. W. L. A. & M. Assn. v. Delano, 108 Mo. 217; McDearmont v. Sedgwick, 140 Mo. 172-5; Meier v. Proctor & Gamble Co., 81 Mo.App. 419. The trial court, therefore, under the general denial, would not have been justified in admitting testimony to invalidate the contract, and yet defendant obtains all the advantage of that defense. (b) The defendant, however, having received the benefit of the transaction, having accepted and held the proceeds of the sale after full information as to who was the buyer--if he could claim to have ever been ignorant, and holding the money paid to this day--must be held to have ratified the contract made. He can not avail himself of a contract made by an agent as to that part of it advantageous to him and repudiate its obligations, and this rule applies not only when the ratification is express, but also when it is implied. Mechem on Agency, sec. 130; Story on Agency, sec. 250. (c) The agreement is an entire thing and all its provisions are to be taken together. The defendant had to affirm or reject the whole. He has ratified it to the extent that he holds the money paid under it. He can not escape its corresponding obligation. Herman on Estoppel, sec. 1069; Austin v. Loring, 63 Mo. 19; Clyburn v. McLaughlin, 106 Mo. 524; McClanahan v. West, 100 Mo. 323; Fahy v. Springfield Grocer Co., 57 Mo.App. 76; Chase v. Williams, 74 Mo. 437; Wilcoxon v. Osborn, 77 Mo. 628; Bank v. Badger Lumber Co., 54 Mo.App. 331. (d) The contention that defendant can retain plaintiff's money and at the same time say the contract by which he holds it does not bind him is so repugnant to all sense of justice that it does not require further citation of authorities, though no principle has been oftener announced by the courts. (e) The evidence showing that defendant knew at the time of the transaction that plaintiff was the purchaser of the lot and having retained the earnest money, such retention of the money paid was an election to ratify the contract and such election was final. The contract adopted for a moment is adopted forever and he immediately became bound thereby. Mechem on Agency, sec. 169. (2) It is contended under point 3 of respondent's abstract that by permitting evidence to be introduced without objection, the question of pleading the double agency was waived. Since defendant offered no evidence whatever, it is difficult to see the force of this contention. Reese v. Garth, 36 Mo.App. 140; Mize v. Glenn, 38 Mo.App. 103; George v. Williams, 58 Mo.App. 140; Reynolds v. Reynolds, 45 Mo.App. 627; Cumminskey v. Williams, 20 Mo.App. 610. (a) The contract made by defendant, even granting that he would not have made it if he had known to whom he was selling the lot, was one which, after he learned plaintiff was the purchaser, he might ratify. "He who may authorize in the beginning may ratify in the end." Mechem on Agency, secs. 110, 111, 112; Bank v. Gay, 63 Mo. 39; Bank v. Dunn, 62 Mo. 79; Bless v. Jenkins, 129 Mo. 659; Chouteau v. Allen, 70 Mo. 290; Riley v. Forghee, 57 Mo. 390. (b) The acts of respondent, after full knowledge of all the facts, constitute ratification of the contract. McLachlin v. Barker, 64 Mo.App. 511; Mechem on Agency, sec. 148; Dry Goods Co. v. Bank, 81 Mo.App. 51. In Fahy v. Grocer Co. the law was stated thus: "The question of ratification was one of fact and should have been submitted to the jury." Bank v. Murdock, 62 Mo. 70; Middleton v. Railroad, 62 Mo. 581.

W. H. Horine, C. J. Wright and Mann, Sebree & Farrington for respondent.

(1) The double agency of Milton McClure, and the fraud practiced by him upon the respondent, rendered the contract sued on void from the beginning and no action can be maintained thereon. Chapman v. Currie, 51 Mo.App. 40; Smith v Tyler, 57 Mo.App. 668; DeSteiger v. Hallington, 17 Mo.App. 382; Robinson v. Jarvis, 25 Mo.App. 421; Atlee v. Fink, 75 Mo. 100; Everheart v. Searle, 71 Pa. St. 256. (2) Nor is it necessary to show that injury to respondent resulted from such contract. The contract is void on account of its necessarily injurious tendency, and its being against public policy. Rice v. Wood, 113 Mass. 133. (3) (a) It is competent to make this defense under a general denial, because the contract was void from its inception and plaintiff never had a cause of action, and this fact was disclosed by the evidence of plaintiff in making out her case. School Dist. v. Sheidley, 138 Mo. 672; McDermot v. Sedgewick, 140 Mo. 172; White v. Middlesworth, 42 Mo.App. 368; Scudder v. Atwood, 55 Mo.App. 512; Hardwick v. Cox, 50 Mo.App. 509. (b) The statute of frauds may be shown under a general denial, because it is for the plaintiff to prove that the contract on which he sues is one which is legally binding. Hackett v. Watts, 138 Mo. 502; Porter v. Bank, 73 Mo.App. 513; Hillmon v. Allan, 145 Mo. 638. (c) Conceding, for the sake of argument, that the defense was not properly raised by the general denial, yet by permitting the evidence to be introduced without objection, the question of pleading was waived by such failure to object. Hardwick v. Cox, 50 Mo.App. 509; McDonald v. Cash, 45 Mo.App. 66; Stewart v. Goodrich, 9 Mo.App. 125; Hall v. Meyer Bros. Drug Co., 140 Mo. 433. (4) (a) Respondent in retaining...