Millard v. Smith

• Decision Date: 05 June 1906
• Citation: 119 Mo. App. 701,95 S.W. 940
• Parties: MILLARD v. SMITH et al.
• Court: Missouri Court of Appeals

95 S.W. 940

119 Mo. App. 701

MILLARD v. SMITH et al.

St. Louis Court of Appeals. Missouri.

June 5, 1906.

Rehearing Denied July 9, 1906.

1. EXECUTORS — SALE OF LAND — CONTRACT— CONSTRUCTION—PARTIES BOUND.

A testator devised to his wife a certain tract of land and also an undivided one-half interest in another tract, and named the wife as executrix and one of the other devisees as executor of the will. The wife, describing herself as executrix, joined with other devisees and the executor in executing a contract giving an option to purchase the land and also appointing a certain person as agent to make sale thereof. Held, that the wife was individually bound by contract.

2. PRINCIPAL AND AGENT—ESTOPPEL TO DENY AGENCY.

Where an owner of an interest in land signed as executrix an instrument purporting to authorize a certain person to negotiate a sale of the land, and afterwards received the proceeds of a sale and delivered a deed conveying her individual interest in the property, she was in no position to deny that the person who negotiated the same was her agent for the sale of her individual interest.

3. SAME—MISREPRESENTATIONS OF AGENT—LIABILITY OF PRINCIPAL.

Where an agent employed to sell lands effects a sale by means of false representations in respect to the land, the principal is chargeable with the fraud, even though he had no personal knowledge of it.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by E. M. Millard against L. X. Smith and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The suit is on a promissory note for $3,750, bearing interest at the rate of 8 per cent. per annum from date, against L. X. Smith, the principal, and the other defendants as indorsers. The defense is a failure of consideration. Verdict and judgment for plaintiff for $3,750. The plaintiff is the widow of G. F. Millard, who, in his lifetime, planted and cultivated a ginseng garden on his home place in the city of Houston, Texas county, Mo., and a larger one on a 65-acre tract of land he owned, situated about 3 miles from Houston, on Piney river. G. F. Millard, by his last will, devised all the ginseng plants and roots in the home garden to the plaintiff, and also an undivided one-half interest in the 65-acre tract on Piney river and the ginseng plants and roots growing thereon; the other undivided one-half he devised to Thomas F., Homer, and Herbert Millward, his nephews, and named the plaintiff and Charles M. Beaumont executrix and executor of his last will, both of whom qualified. Beaumont is also curator of the estate of Herbert Millard, a minor. L. X. Smith and Thomas F. Millard are blood cousins, and were together in Houston some time in the year 1901, and made a casual examination of the ginseng gardens, and discussed the advisability of forming a corporation to acquire the interest of the plaintiff in the ginseng property, and to capitalize both gardens. Smith returned to his home in Cripple Creek, Colo., and in the latter part of the year 1902, Thomas Millard, who was in Waco, Tex., entered into a correspondence with Smith, then in Cripple Creek, respecting the formation of a syndicate of capitalists at Cripple Creek to acquire the interest of plaintiff, or the whole property, to incorporate and operate it by cultivating ginseng. This correspondence continued into the early part of the year 1903, and until it was demonstrated that capitalists in Cripple Creek, whom Smith had hoped to interest in the property, would not take hold of it. A proposition that Smith should buy the interest of plaintiff in the property, and that a corporation be formed to acquire and operate the whole property, was discussed by further correspondence between Smith and Millard, which culminated in Millard procuring the following contract:

"Contract of Option.

"This agreement, made and entered into this third day of March, 1903, by and between Charles M. Beaumont and Elizabeth M. Millard, executors of the last will and testament of G. F. Millard, deceased, and Homer S. Millard and Thomas F. Millard, legatees of the said G. F. Millard and Charles M. Beaumont as guardian and curator of the estate of Herbert Millard, a minor, all parties of the first part, and Thomas F. Millard, party of the second part, Witnesseth: That the said parties of the first part, in consideration of the sum of one ($1.00) dollar, to them in hand paid by the said Thomas F. Millard, party of the second part, the receipt of which is hereby acknowledged, have this day contracted and agreed with the said Thomas F. Millard, that he shall have exclusive option for the space and duration of five months from this date on the sale of Lot 2 of the northeast ¼ of section 2, township 30, range 10, (except two acres heretofore sold to R. E. Barnard) including the ginseng being, standing and growing thereon or appurtenant thereto, including all plants, roots and everything in connection with said ginseng plantation, and also the ginseng and plants standing, being and growing on the ground near the G. F. Millard house in Houston, Missouri, at a price not less than $10,000, and for the space of five months from the date hereof, is to have the exclusive right to negotiate a sale for the said ginseng and lands herein mentioned. The parties of the first part to realize from said sale the net sum of $10,000. In testimony whereof, the parties hereto have signed their names in duplicate the day and year first above written. Charles M. Beaumont, Elizabeth M. Millard, Executors of the Estate of G. F. Millard, Deceased. H. S. Millard, Chas. M. Beaumont, G. & C. Herbert Millard. ________, Party of the Second Part."

After getting possession of this contract, early in May, Thomas Millard went to Cripple Creek and sold plaintiff's interest in the property to Smith for $7,500, one-half to be paid in cash and the balance to be secured by note. Smith furnished his father, W. M. Smith, with the money to make the cash payment and sent him, accompanied by Millard, to Houston with authority to close the deal. It was also agreed by and between Millard and L. X. Smith, that a corporation should be formed with a capital of $100,000, $50,000 of which should represent the value of the whole property and $50,000 to be held as treasury stock. W. M. Smith and Millard proceeded to Houston, the deal was closed by the payment of $3,750 to the plaintiff and the delivery to her of the note in suit, whereupon she executed a deed conveying the property to _________. The...