McElroy v. Maxwell

• Decision Date: 30 June 1890
• Citation: 101 Mo. 294,14 S.W. 1
• Parties: McELROY v. MAXWELL.
• Court: Missouri Supreme Court

14 S.W. 1

101 Mo. 294

McELROY v. MAXWELL.

Supreme Court of Missouri.

June 30, 1890.

SPECIFIC PERFORMANCE — FRAUD — AGENCY.

1. In a suit to enforce specific performance, it appeared that defendant was an illiterate and feeble old woman, who had been urgently importuned by a real-estate agent for authority to sell her farm, but that she steadily refused until the last interview, when the agent induced her to sign what she supposed to be a memorandum stating that she had finally declined to sell, but which was in reality a power of sale, under which the agent made a contract in her name with plaintiff. Held, that this contract would not be enforced in equity.

2. Where the vendor's agent was also acting as agent of the vendee without the knowledge of the vendor, his contract of sale will not be enforced against the vendor.

Appeal from circuit court, Jackson county: TURNER W. GILL, Judge.

Gates & Wallace and A. Comingo, for appellant. Karnes, Holmes & Krauthoff, for respondent.

SHERWOOD, J.

This is a proceeding for specific performance, instituted in the Jackson circuit court, for 120 acres of land lying in the vicinity of Kansas City. Having carefully read the evidence, and given it much consideration, the following statement will present a sufficiently accurate history of the transaction to form the basis of the conclusions hereafter drawn therefrom:

Hughes, the whilom elder in the church and Sunday school superintendent, went to the house of Mrs. Maxwell, a member of the same church, on Saturday, March 1, 1884, ostensibly to buy hogs, but in reality to buy the land in question. Hughes had formerly lived in the neighborhood, but then was, and for several years had been, a resident of Kansas City, where he had gone into the real-estate business. Having lived as a neighbor to Mrs. Maxwell, only a mile distant, for several years, and having officiated as a preacher of the church and superintendent of the Sunday school, he had been in years past a frequent visitor at her house, and always manifested great interest in her affairs, and had frequently proffered her his advice in their management. On the date referred to, a very cold and disagreeable wind was blowing from the north-east, and Hughes came there about 10 o'clock in the morning on his assumed porcine errand, though he did not know Robert had any hogs; and being told by Robert, her son, that he had no hogs to sell, he commenced a long-winded conversation with Mrs. Maxwell about his family, the low prices for which excellent lands in the county could be bought, etc., until nearly time to get dinner, when Mrs. Maxwell left the room for that purpose, leaving Hughes talking with Robert. Dinner being over, defendant returned to the sitting-room, when Hughes renewed the conversation with her, called her "Sister" Maxwell, and suggested to her to give him her land to sell, and, on her replying that she did not wish to sell it, he said he thought he could sell it for $80 per acre. He kept on insisting that defendant should let him have the land to sell, when she told him, even if she wished to sell, she would not do so for less than $100 per acre. Hughes went away late that afternoon. The next Monday morning was a day similar in every respect to the preceding Saturday, and with a very disagreeable wind blowing from the north-east; but Hughes, nothing daunted, was promptly on hand at about the same hour as on Saturday, and renewed his endeavors to induce Mrs. Maxwell to part with her land. At that time she was weak and nervous, 65 years old, illiterate, and in such poor health that she had not been outside of her yard for the three previous months. Hughes told Mrs. Maxwell that he had not intended to come over that day, but being in the neighborhood, close by, he had concluded to come and talk to her about the land. Said McElroy would buy the land at $80 per acre, and, on being told by Mrs. Maxwell that even if she wanted to sell, it would not be at that price, Hughes remarked that it was more than it was worth; that the taxes were eating it up; that it was so much trouble to keep up the land, the fences, and hire help; when Mrs. Maxwell told him her father had given her the land so many years ago that she wished to remain there, that there was no necessity for selling it, and that she would not do so. But Hughes still kept on talking how advantageous it would be for Mrs. Maxwell to sell her land; that she could get $80 per acre for it, which would amount to $10,000, and with one-half that sum she could buy a better farm for $40 per acre, and then loan out $5,000 at interest. Then he shifted the conversation to Kansas City property; how long he had been an elder in the church; how much he had done for it; and how badly he had been treated by it by being turned out. He then went on to quote scripture; spoke of the early Christians at Antioch; how they sold their lands and other property, and laid down at the apostles' feet, etc. Recurring again to the subject of Mrs. Maxwell's land, he advised her to sell the land, buy a good place in town, enjoy "church privileges," and loan her money out at a good rate of interest. After much conversation of this sort, he asked Mrs. Maxwell if she would take $100 per acre for the land, and, on her refusing to do so, and telling him that he was wasting his time talking to her, he then produced a little book, and said to her, as she testifies: "`Well, Mrs. Maxwell,' he says, `McElroy is waiting to go to Chicago. You see he is waiting on me, and I ought have gone some time ago. Now, if you will just sign this little paper, I will be going.' I said, `It is not necessary for me to sign it.' `Well,' he said, `I think he will go to night, or in the morning, if you will sign it. He has been waiting three or four days,' I think he said, `to see if I would make this trade, and I have not made it.' He said if I would sign it he would be going. I told him, `No, that I did not want to sign it.' `I have never had the benefit of very much education, and I cannot read your writing.' `Why,' says he, `there is nothing in it; only a few words to McElroy to tell him how it is, so he won't be waiting any longer.' I refused to sign it, and said, `I don't know what you have written.' `Why,' says he, `Sister Maxwell, do you think I would do anything to give you trouble, or to be of any disadvantage to you. I would not do such a thing for the price of your land. It is nothing that will be of any disadvantage, or give you any trouble;' and then I signed in that book. That is just exactly the words we said. There were some more words along there that I do not remember. When I told him I did not know what it was, he read it over. He said that J. M. Hughes had been there that day trying to buy my land, and he had offered me $100 an acre, and that I had refused to take it, and refused to sell it at all, and that was all he could do. I don't know but there might have been more. I do not remember the wording; but that was pretty near all that was said. I did not read it. I told him I could not read his handwriting. I could not read it unless it was very plain. I was raised in the country where there were no schools. I thought I was signing some paper that they would not trouble me any more. My health was bad, and McElroy had been there, and I was so worried with him that I thought to myself if I could get rid of them by signing I will sign it. He said McElroy would start to Chicago to-night or in the morning," etc. "No one was in the room at the time I signed. Robert came in, and Hughes talked some with him. He said `I have offered your mother $100 an acre for her land, and she has refused to take it, and I think she has been a very foolish woman for it.' I don't know what Robert said to him. I had a terrible headache; a nervous headache. I felt terribly bad, and he talked so long and so loud. I don't know what Robert said. He and Robert went out."

The paper which Mrs. Maxwell was thus induced to sign was in this form: "I hereby authorize J. M. Hughes to sell my farm for the sum of twelve thousand dollars net. I further obligate myself to make good and sufficient title to it for said amount. This third day of March, 1884. MATILDA MAXWELL." It was quite late in the afternoon, about 3 o'clock, when Hughes left Mrs. Maxwell to return to Kansas City, but when he left he gave no intimation to Robert that he had been authorized by Mrs. Maxwell to sell the land at $100 per acre. On the contrary, he told him, as they went out together where his horse was hitched, that his mother was a very foolish woman not to sell at such a price, i. e., $100 per acre. Hughes reached Kansas City about dark, put up his horse, and went to the Coates House to see McElroy, and "to report" to him about the land, and found the lamps lit. McElroy, as he himself says, wanted this land "terribly bad." He had been out there to...