Perles & Stone, Inc., v. Childs Co.

• Decision Date: 11 July 1935
• Docket Number: No. 32547.,32547.
• Citation: 84 S.W.2d 1052
• Court: Missouri Supreme Court
• Parties: PERLES & STONE, INC., a Corporation, v. CHILDS COMPANY, a Corporation, Appellant.

84 S.W.2d 1052

PERLES & STONE, INC., a Corporation, v. CHILDS COMPANY, a Corporation, Appellant.

No. 32547.

Supreme Court of Missouri.

Division Two, July 11, 1935.

Appeal from Circuit Court of City of St. Louis. — Hon. Granville Hogan, Judge.

AFFIRMED AND REMANDED.

Neun, D'Arcy & Neun for appellant.

(1) It was incumbent on plaintiff to introduce in evidence the contract for commissions made by Siegel with Childs Company, because: (a) By bringing suit to appropriate the benefit of the service rendered by Siegel plaintiff ratified the contract as made by Siegel, and that contract then became plaintiff's contract as fully as though Siegel had been originally authorized to make same. Campbell v. Pope, 96 Mo. 472; State ex rel. Spellman v. Parke-Davis Co., 177 S.W. 1073; Shinn & Guyton v. Herrington Mule Co., 109 Mo. App. 557, 83 S.W. 1015; Nichols, Shepard & Co. v. Kern, 32 Mo. App. 1; Young v. Emmke, 210 Mo. App. 56, 242 S.W. 161; Independent Harvester Co. v. Malzohn, 147 Minn. 145, 179 N.W. 727; Johnson v. Hoover, 72 Ind. 395. (b) The witness contract of October 17, 1928, having thus become by ratification plaintiff's contract, it was incumbent on plaintiff to introduce that contract in evidence to sustain its case, and to limit the amount of its recovery. Williams v. Ry. Co., 112 Mo. 494; Murphy v. Holliway, 16 S.W. (2d) 116; American Surety Co. v. Fruin-Bambrick Cons. Co., 182 Mo. App. 667, 166 S.W. 333; Kronan v. Weisberg, 135 N.Y. Supp. 404; Samuels v. Schiller, 199 N.Y. Supp. 53. (2) In further support of the principles underlying the cases cited above in Point 1 we submit the following: (a) Ratification of part of an agent's unauthorized act is a ratification of the whole. St. Louis Mut. Life Ins. Co. v. Walker, 46 S.W. (2d) 171; State ex rel. Laupheimer v. Harrington, 100 Mo. 170; Kirkpatrick v. Pease, 202 Mo. 471; Beagles v. Robertson, 135 Mo. App. 306. (b) A ratification once made by the principal relates back to the time when the contract was made, and therefore Siegel's agency for Perles & Stone became as effective, when the latter brought this suit, as though he had acted under the express authority of Perles & Stone in signing the commission contract with Childs. Plummer v. Knight, 156 Mo. App. 343; Fritsch v. Natl. City Bank, 24 S.W. (2d) 1066. And such ratification, once made, is irrevocable, and the principal cannot thereafter pursue a remedy inconsistent with the ratification. Plummer v. Knight, supra. (3) Where one signs a written contract which shows on its face that he is not signing as an agent, but is contracting as a principal, a third party cannot sue on such contract as an undisclosed principal of the alleged agent. The language of the contract negatives the idea of agency. Humble v. Hunter, 12 Q.B. 310; Arpe v. Brown, 51 S.W. (2d) 229; Franklin Fire Ins. Co. v. Shadid, 68 S.W. (2d) 1030; Restatement of the Law of Agency, sec. 527; 2 Mechem Agency (2 Ed.), sec. 2070; Schmaltz v. Avery, 16 Q.B. 655; Formby v. Formby, 102 L.T. 116; Crowder v. Yovovich, 84 Ore. 41, 164 Pac. 576; Moore v. Cement Co., 121 App. Div. 667, 106 N.Y. Supp. 393; Werlin v. Eq. Surety Co., 227 Mass. 157, 116 N.E. 484; Darrow v. Horne Produce Co., 57 Fed. 463; Huffcut on Agency (2 Ed.), secs. 132-134; Clark & Skyles on Agency, secs. 533, 534; Williston on Contracts, sec. 286, p. 549. (4) In support of various phases of above Point 3 the following authorities are submitted: (a) A written contract cannot be varied in any particular by parol evidence. This rule excludes evidence to show that third parties are interested in the contract, where the contract on its face shows that they are not interested. Vanderberg v. Gas Co., 126 Mo. App. 600; Sandige v. Hill, 76 Mo. App. 540; Graves & Barnewal v. Boston Marine Ins. Co., 2 Cranch, 419; Humble v. Hunter, 12 Q.B. 310. (b) It is essential to the relation of principal and agent that the principal (i.e., Childs Company) shall, in some manner, either expressly or by implication from conduct for which he is responsible, appoint the agent. Plummer v. Knight, 156 Mo. App. 335; N.Y. Cent. Trust Co. v. Bridges, 57 Fed. 753. (c) It is a general principle that, since the obligation and duty arising out of a contract are due only to the parties thereto, no one else can sue on it. Boston Ice Co. v. Potter, 123 Mass. 28; Boulton v. Jones, 2 H. & N. 564. (d) In an action of assumpsit the plaintiff must prove a contract between himself and the defendant at the latter's special instance and request. Greenville Lumber Co. v. Natl. Press Brick Co., 133 Mo. App. 217; Carson v. Ely, 23 Mo. 266; Bartholomew v. Jackson, 20 Johns. 28; Mills v. Wyman, 3 Pick. 207. (e) Assumpsit is based on a promise either express or implied but the law will never imply a promise against the express declarations of the party to be charged made at the time of the supposed undertaking. Municipal Water Works Co. v. Fort Smith, 216 Fed. 438; 5 C.J. 1385, note 64; Klebe v. United States, 263 U.S. 188; Tempel v. United States, 248 U.S. 130.

Boyle & Priest, George T. Priest and Robert E. Moloney for respondent.

(1) Plaintiff-respondent is entitled to recover, quantum meruit, for services rendered. Anderson v. Caldwell, 242 Mo. 201. (2) Persons dealing with ordinary agents are bound to know that they have no unusual or exceptional authority to bind their principals. Friedman v. Kelly, 126 Mo. App. 279; Bixler v. Riney, 7 S.W. (2d) 396; Pemiscot v. Duncan, 194 S.W. 299.

COOLEY, C.

This is an action brought to recover the reasonable value of services alleged to have been rendered by Perles & Stone, a partnership, in procuring for defendant the leasing of certain real estate. Upon trial to a jury there was a verdict for defendant. The circuit court sustained plaintiff's motion for new trial on two grounds therein assigned, viz., that the verdict was against the greater weight of the evidence and that the court had erred in admitting, over plaintiff's objections, "improper, immaterial, irrelevant and incompetent evidence" offered by defendant. Defendant appealed.

Defendant has a ninety-nine year lease on certain improved real estate on Olive Street in St. Louis. Plaintiff's petition alleges that about September, 1928, Marc Perles and Frank F. Stone, copartners engaged in the real estate business in St. Louis, procured for defendant the leasing of its said property to Rossman, Inc., a corporation, for a twenty-five year period; that the reasonable value of the services so rendered is $14,158.33; that Rossman, Inc., took possession of the premises as defendant's lessee and that defendant thus became indebted to Perles & Stone for the reasonable value of their services; that thereafter said partners caused to be formed the plaintiff corporation and assigned to it their claim against defendant and so notified the latter.

Defendant's amended answer, after alleging lack of knowledge sufficient to form a belief as to whether or not Perles & Stone, as partners, had been in the real estate business or had caused plaintiff corporation to be formed or had assigned to it their claim, alleged that if said Perles & Stone or plaintiff "have or ever had any interest in the commissions arising out of the services alleged in the petition to have been rendered on behalf of the defendant the interest of said copartners, Marc Perles and Frank F. Stone, and/or Perles & Stone, Inc., is and at all times was a joint interest with one E. Earl Siegel; that on or about the 13th day of May, 1930, defendant paid to said E. Earl Siegel the sum of $3000, which was paid to and received by said E. Earl Siegel in full satisfaction, compromise and payment of the whole claim of said E. Earl Siegel and of the claim of said copartners, Marc Perles and Frank F. Stone, and/or Perles & Stone, Inc., described in the petition. Defendant denies each and every other allegation stated in the petition." The reply was a general denial.

Plaintiff introduced evidence tending to prove the following:

Perles & Stone, partners, were licensed real estate dealers in St. Louis and had an arrangement with E. Earl Siegel, who was not a licensed dealer, whereby the latter acted as salesman for them, receiving from them portions of the commissions which they received on transactions in which he assisted or which he brought to the office. He was not a partner of Perles & Stone or either of the members of said firm. Childs Company, defendant, had headquarters in New York City. On December 16, 1927, Perles & Stone wrote Childs Company as follows:

"The Childs Co., "200 Fifth Ave., "New York.

"Gentlemen: We understand that you are desirous of giving up the lease of your Olive Street restaurant, namely, 614-16 Olive St.

"If so, we believe that we have a client who might be interested in this property.

"Trust that you will favor us with an early reply.

                    "Yours very truly
                                             "Perles & Stone."
                

Childs Company replied December 19, 1927:

"Messrs. Perles & Stone, Central National Bank Building, Seventh and Olive Streets, St. Louis, Missouri.

"Re: 614-616 Olive Street, St. Louis.

"Gentlemen: We have your letter of December 16th and suggest that, if you have anybody who is definitely interested in this property, you submit to us a proposition thereon, after which we shall be glad to answer any suggestion as to our giving up this space.

                  "Very truly yours
                                     "Childs Company
                                     "Frederick W. Bode
                                     "Frederick W. Bode."
                

Thereafter at Perles & Stone's suggestion Siegel sent letters to several prospective tenants without result. On July 7, 1928, Perles & Stone wrote to A.B. Rossman, president of Rossman, Inc., asking if his company would be interested in coming to St. Louis. About September 10, 1928, Siegel went to New York with instructions from Perles & Stone to call on Rossman and Childs Company. About September 18th Eli Rossman, vice president of Rossman, Inc., in company with Siegel,...