Moots v. Cope
| Citation | 126 S.W. 184,147 Mo.App. 76 |
| Parties | C. E. MOOTS, Appellant, v. QUINCY COPE, Admr. of the Estate of MISSOURI SUMMERS, Deceased, Respondent |
| Decision Date | 21 February 1910 |
| Court | Court of Appeal of Missouri (US) |
Appeal from Montgomery Circuit Court.--Hon. R. S. Ryors, Special Judge.
AFFIRMED.
STATEMENT.--Action brought in the circuit court of Montgomery county, to recover the sum of two hundred dollars, 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 $ 2180 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 sixth 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 $ 3800 in manner following: $ 1800 on delivery of the deed; $ 200, to be part of the $ 1800, upon the signing of the contract, the balance of the $ 3800 due in two years at 5 per cent interest per annum from the first 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:
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 & Company to sell the real estate described in the petition, was one authorizing them to sell it for the sum of $ 3500 or $ 17.50 per acre, "one-half cash and balance in one year, with six per cent interest from date of sale," she to pay Palmer & Company five 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 & Company have shown the property or given information of, or recommended the same; the agreement to remain in force for twelve months and thereafter until Mrs. Summers shall give thirty days written notice of withdrawal from sale. It is then averred that thereafter and before October 3, 1903, Mrs. Summers notified Palmer & Company that she rescinded and cancelled the contract and withdrew her land in the contract described from the market, and that Palmer & Company 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 & Company to act as her agents in regard to said land in any respect." She denies, in substance, that Palmer & Company 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 & Company 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 & Company, was made after she had rescinded and cancelled the authority given by her to Palmer & Company 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 & Company, 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 appearances, 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 & Company 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 & Company 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 six per cent interest from date, whereas the contract sued on is for $ 200 to be paid down, $ 1800 at a certain time, the balance in two years, bearing five 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 authorized the making of the contract sued on. This objection was sustained by the court and plaintiff duly excepted. Whereupon this occurred:
In the view which we take of the case, it is unnecessary to set out the further testimony offered, other than to say that plaintiff offered testimony tending to show that after the agents had entered into the contract with plaintiff, Mrs. Summers was informed of it and made no objection to it until the question came up about the title and plaintiff demanded that the deed which was to be executed should be signed by her husband, or that she should procure the signature of her husband to it. She declined to do so, but was willing to make her own deed, which plaintiff was unwilling to accept. It appears that Mrs. Summers and her husband, while not divorced, were living apart and having no dealings with each other. It was in evidence that the two hundred dollars earnest money had been paid by the plaintiff to the agents but no part of it was paid over to Mrs. Summers. Finally, Mrs. Summers refused to go on with the deal at all, whereupon this suit was brought. All this testimony was excluded under the general objection that it was not pretended that there had been any ratification in writing of the contract which was made by the agents and which is the contract sued on. Objection was also made to plaintiff testifying at all to the transaction between himself and Mrs. Summers, the latter being dead at the time of the trial.
At the conclusion of the testimony in the case, plaintiff asked leave to file an amended reply to conform to the proof. The reply set up that after the contract had been signed by the agents of Mrs. Summers, she had ratified the contract so made by her agents, with full knowledge and information as to the contents of the contract she was ratifying. The court declined to allow this amendment on the ground that it was a departure from the pleading and on the ground that it was not sustained by the evidence in the case, there being no proof of the ratification in writing.
At the close of plaintiff's evidence, the court instructed the jury, over the objection and exception of plaintiff, that under the law and evidence the jury should find for the defendant. Whereupon the jury returned a verdict for the defendant. The plaintiff in due time filed a motion for a new trial which was overruled, exceptions saved, and the case is now here on appeal by plaintiff.
Judgment affirmed.
Thos. W. Tipton and E. Rosenberger & Son for appellant.
(1) (a) Where a principal puts an agent forward as a general agent though in a particular line, or places him in a position where others are justified in the belief that his powers are general, the restrictions that may be imposed upon him privately will be immaterial except as between him and his principal. ...
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