Moots v. Cope

• Decision Date: 21 February 1910
• Citation: 147 Mo. App. 76,126 S.W. 184
• Parties: MOOTS v. COPE.
• Court: Missouri Court of Appeals

126 S.W. 184

147 Mo. App. 76

MOOTS v. COPE.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

1. FRAUDS, STATUTE OF (§ 116) — CONTRACTS FOR SALE OF REAL ESTATE.

Under Rev. St. 1899, § 3418 (Ann. St. 1906, p. 1951), providing that no contract for the sale of lands made by an agent shall be binding on the principal unless the agent is authorized in writing to make the contract, the variance between a contract authorizing an agent to sell land for one-half cash, the balance in one year with 6 per cent. interest from date, and a contract of sale made by the agent, which stipulates for the payment of $200 down, $1,800 at a certain date, and the balance in two years with 5 per cent. interest, running from a future date, is substantial, and the contract is not binding on the owner in the absence of a ratification in writing.

2. EVIDENCE (§ 445) — PAROL EVIDENCE — VARYING TERMS OF WRITTEN CONTRACT.

A written contract, authorizing an agent to sell real estate on specified terms, cannot be varied by a subsequent parol agreement between the owner and the agent, and evidence of a verbal acquiescence in an altered contract is inadmissible, as an attempt to vary by parol the contract which the owner had authorized the agent to make.

3. CONTRACTS (§ 333) — PLEADING — ALLEGATIONS.

When the law requires a contract to be made in a particular manner, an allegation that it is made implies that it is made in lawful form.

4. PLEADING (§ 180) — PETITION — REPLY — DEPARTURE.

Where the petition based the action on a written contract of sale made by an agent of the vendor, leave to file a reply, which shifts it onto a ratification by the owner of the contract made by the agent, is properly denied because it presents a new issue.

5. PLEADING (§ 269) — AMENDMENTS — REPLY.

Where the petition based the cause of action on a contract of sale made by an agent of the vendor, leave to file an amended reply, setting up a ratification by the vendor of the contract made by the agent, was properly denied, where it was admitted that there had been no ratification in writing.

6. ESTOPPEL (§ 110) — AVAILABILITY AS A DEFENSE — PLEADING — NECESSITY.

An estoppel, to be available, must be pleaded.

Appeal from Circuit Court, Montgomery County; R. S. Ryors, Special Judge.

Action by C. E. Moots against Missouri Summers, prosecuted after her death by Quincy Cope, administrator. From a judgment for defendant, plaintiff appeals. Affirmed.

Action brought in the circuit court of Montgomery county, to recover the sum of $200, alleged to have been paid by plaintiff on account of purchase of land claimed to have been purchased by him from Missouri Summers, and also for $2,180, damages for the breach of the alleged contract of sale. The contract sued on, which is dated October 6, 1903, provides, in substance, as averred in the petition, that Missouri Summers will, on or before the 6th of November next ensuing its date, at the proper cost and charge of plaintiff, by good and lawful deed, convey unto plaintiff, in fee simple, clear of all incumbrances, 198 acres of land in Montgomery county, particularly described, in consideration that plaintiff on the execution of the deed will pay, or cause to be paid, to Missouri Summers $3,800 in manner following: $1,800 on delivery of the deed; $200, to be part of the $1,800, upon the signing of the contract; the balance of the $3,800 due in two years at 5 per cent. interest per annum from the 1st of March, 1904, for which balance plaintiff is to give to Missouri Summers a deed of trust "with sufficient security for the payment of the same, if required, and upon his, the said C. E. Moots executing and delivering the deed of trust aforesaid, the said Missouri Summers shall give unto the said C. E. Moots possession on the first day of March, 1904." This agreement is signed thus: "N. F. Palmer & Co. [Seal], Agents for Missouri Summers. C. E. Moots, [Seal.]"

The answer of Mrs. Summers, who is defendant's intestate and who was living at the time the action was brought, was: First, a general denial; second, she avers that the only contract she ever entered into with Palmer & Co. to sell the real estate described in the petition was one authorizing them to sell it for the sum of $3,500 or $17.50 per acre, "one-half cash and balance in one year, with 6 per cent. interest from date of sale," she to pay Palmer & Co. 5 per cent. commission on the gross amount above mentioned, and all over that price which the land may bring when sold by or through them, or if sold by her, to any party to whom Palmer & Co. have shown the property or given information of or recommended the same; the agreement to remain in force for 12 months, and thereafter until Mrs. Summers shall give 30 days' written notice of withdrawal from sale. It is then averred that thereafter, and before October 3, 1903, Mrs. Summers notified Palmer & Co. that she rescinded and canceled the contract, and withdrew her land in the contract described from the market, and that Palmer & Co. had no right or privilege to attempt to sell the same, and that "except as above stated, she had never given any written authority of any kind to N. F. Palmer & Co. to act as her agents in regard to said land in any respect." She denies, in substance, that Palmer & Co. or any member of that firm, were authorized by her to execute the contract sued on for her or in her name, or to sign her name to any contract or agreement of any other kind with plaintiff, or any one else, or to receive any money or payment on any contract on her account; denies that she at any time authorized Palmer & Co. or N. F. Palmer to make the alleged contract attached to plaintiff's petition, and counted on therein for her or in her name, and avers that the alleged contract, if in fact executed by Palmer & Co., was made after she had rescinded and canceled the authority given by her to Palmer & Co. by the writing signed by her as above set forth, and that the alleged contract was not in accordance with the provisions and terms of the authority to sell, or in conformity therewith. Other defenses, not necessary to notice, are set up; the real defense being that the contract sued on is not the one she authorized Palmer & Co. by her written agreement with them to make. She also denies having ever received the $200, or any other sum, on account of any contract from plaintiff. After answering, and pending the action, Mrs. Summers died, and defendant, as her duly appointed administrator, entered his appearance, waiving process, and adopted the answer theretofore filed by Mrs. Summers. Plaintiff filed a reply, which was a general denial of the new matter set up in the answer.

The case coming on for trial, N. F. Palmer being on the stand as a witness, the plaintiff offered in evidence the agreement between Palmer & Co. and Mrs. Summers, heretofore set out as embodied in the answer of Mrs. Summers. When the agreement was offered, it was objected to by the defendant, for the reason that it is not sufficient to authorize Palmer & Co. to make the contract sued on, that contract being materially different from the one authorized in the agency contract; that in the agency contract the agent is authorized to sell for one-half cash, the balance in one year, with 6 per cent. interest from date, whereas the contract sued on is for $200 to be paid down, $1,800 at a certain time, the balance in two years, bearing 5 per cent. interest, with a provision that the interest will not begin until March 1, 1904. Hence it was objected that the agency contract offered in evidence varies from that sued on, and is not sufficient in form and substance to authorize the making of the contract sued on. This objection was sustained by the court, and plaintiff duly excepted. Whereupon this occurred: "Mr. Rosenberger (counsel for plaintiff): We further offer to show that Mrs. Summers did ratify this sale. Mr. Cullen (counsel for defenda...