McManus v. Gregory

• Citation: 7 S.W. 423,94 Mo. 370
• Parties: McManus, Appellant, v. Gregory et al
• Decision Date: 05 March 1888
• Court: United States State Supreme Court of Missouri

7 S.W. 423

94 Mo. 370

McManus, Appellant, v. Gregory et al

Supreme Court of Missouri

March 5, 1888

Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.

Affirmed.

D. D Fassett and Sim. T. Price for appellant.

(1) The sales were separate. 16 Mo.App. 376. (2) For the redemption of each piece of property sold, the seller was bound to pay the maximum bonus. 16 Mo.App. 376. (3) Lanham & Sutton auctioneers, were respondents' agents for making the sales, and their agency was sufficiently established. But if the sufficiency of proof of their agency be questioned, the fact is indubitably established by a subsequent ratification. That the recognition and ratification of an act which has been previously performed are tantamount to its antecedent authorization, is a proposition too plain for discussion or the citation of authorities. Turner v. Railroad, 51 Mo. 510. The agency of Lanham & Sutton, being established, their memoranda of sales show the sales to have been separate and fully satisfy the requirements of the statute of frauds. White v. Watkins, 23 Mo. 427. (4) The receipt taken by plaintiff was not the contract, as the court below erroneously held. It was a "note or memorandum in writing signed by the party to be charged," etc., and as such was evidence of the preexisting contract to which it referred. The fact that the receipt mentions a gross sum as the total price of the two houses, neither affirms nor denies appellant's theory of the sale, it is consistent with either theory. It is at most but an ambiguity which is explained by the other evidence of all the facts surrounding the sale, and the receipt presupposes a prior contract, The court cannot ignore all the other evidence in the case after having admitted it, and treat the receipt as the only evidence of contract. Parol proof may supply omitted parts of a writing or contract when it is shown on its face that it does not contain the entire contract. Lehndorf v. Shields, 13 Mo.App. 486; Brown v. Bowen, 90 Mo. 184.

Dyer, Lee & Ellis for respondents.

Black J. Ray, J., absent.

OPINION

Black, J.

This was an action for the specific performance of a contract for the sale of real estate. The facts disclosed on the trial are these: Fisher & Company, real-estate agents, issued a prospectus or handbook of a proposed auction sale of various parcels of property belonging to their patrons. The terms of the sale, as therein set forth, so far as material to this case, are as follows: "If, however, any piece of property is knocked down at the sale at a price that the owner considers too great a sacrifice, he will have the right, within forty-eight hours after the sale, to redeem the same by paying a bonus of not less than seven dollars and not more than thirty dollars. This sum, together with the earnest money, will be turned over to the purchaser and sale declared off," etc. "Deposit: Thirty dollars required down on purchase of property on one thousand dollars or under; fifty dollars on sales between one thousand dollars and two thousand dollars; seventy-five dollars on sales between two thousand dollars and five thousand dollars, and so on. The part of each plat colored red is the property for sale."

Among the property thus advertised for sale was a parcel owned by the defendants and designated by red color on plat number 29, of the prospectus. The property is described in the handbook as numbers 1511 and 1513, Clark avenue, block 210, fifty feet front by one hundred and seventy-five feet, with two houses thereon, which are described. The numbers are evidently street numbers. The auctioneer on reaching this property offered for sale the west twenty-five feet, and at the same time stated that the purchaser would have the privilege of taking the other part at the same price. Plaintiff, through her son and a Mr. Keely, bid off number 1513 at four thousand and seventy-five dollars, and elected to take number 1511 at the same price. The clerk of the auctioneer then placed upon that part of the plat colored red the figures $ 4,075 in two places, and upon another part wrote "Camilla S. McManus, $ 8,150." Keely, for the plaintiff, not having seen these memoranda of the auctioneer, handed to Fisher & Company, fifty dollars, and received therefor the following receipt:

"Received of Camilla S. McManus, fifty dollars, account purchase of house 1511 and 1513 Clark avenue, block 210 per plat, No. 29, catalogue of to-day's sale. Sold for the sum of eighty-one hundred and fifty dollars, subject to approval of owner per condition of sale.

"Gregory Heirs,

"By Fisher & Co., agents."

Before delivering the...