Roth v. Goerger
| Decision Date | 11 December 1893 |
| Citation | 24 S.W. 176,118 Mo. 556 |
| Parties | Roth, Appellant, v. Goerger et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Jacob Klein Judge.
Affirmed.
F. & Ed. L. Gottschalk for appellant.
(1) The statutes of fraud may be waived, and, therefore, to take advantage thereof it must be pleaded. McGowen v West, 7 Mo. 570; Farrar v. Patton, 20 Mo. 81; Aultman v. Booth, 95 Mo. 383. (2) Bunte having purchased with knowledge of previous sale, is not a purchaser in good faith, and stands in no better position than Goerger. Maybee v. Moore, 90 Mo. 340. (3) A principal, by ratifying and confirming the acts of his agent adopts them and makes them his own from the beginning. Savings Association v. Morrison, 48 Mo. 273; Ruggles v. County, 3 Mo. 496; Menkens v. Watson, 27 Mo. 163; Davis v. Krum, 12 Mo.App. 279; Cravens v. Gillihan, 63 Mo. 28. (4) Ratification is equivalent to prior authorization. Bank v. Gay, 63 Mo. 33; Ferris v Thaw, 72 Mo. 446. (5) The absolute signing by principal is not necessary, but may be done by his clerk. Briggs v. Munchon, 56 Mo. 467.
H. A. Haeussler and Broadhead & Hezel for respondents.
(1) If the facts, the existence of which entitle the person against whom they are alleged to the benefit of the statute, appear in the pleadings, such person may take advantage of the statute by demurrer. Story on Equity Pleadings, secs. 580, 588; Chitty on Pleadings, 566; Browne on Statute of Frauds, sec. 509; Galway v. Shields, 1 Mo.App. 549. (2) No contract for the sale of lands made by an agent shall be binding upon the principal, unless such agent is authorized in writing to make said contract. Revised Statutes, 1889, sec. 5186.
This is an action for the specific performance of the following contract in writing, copied into and made a part of the petition:
The plaintiff charges in his petition that the defendant was at the date of said contract the owner of the real estate therein described, that Henry Hiemenz was his agent, and had oral authority to make the sale evidenced by the contract, and received in part payment of the purchase money therefor, the said sum of one hundred dollars, which said Hiemenz has ever since retained, and after said sale had been made and reported by said Hiemenz to the defendant by letter, the said defendant orally ratified such sale and the action in the premises of his said agent, and at his direction, the said agent of defendant executed to this plaintiff said written contract, but "that said Hiemenz had at no time written authority to act for said Goerger, and said Goerger at no time signed a written paper in relation to said sale." That afterwards, on August 8, 1890, plaintiff tendered to said defendant Goerger and to his said agent the full amount of the balance due on said purchase, which he has always been, and now is, ready to pay, and which he now brings into court, and demanded a deed for said real estate which defendant refused to execute, etc.
To the petition the defendant demurred, the court sustained the demurrer, and the plaintiff standing on his demurrer, appealed from the judgment rendered thereon.
It appearing plainly upon the face of the petition that the alleged agent Hiemenz had no authority in writing from the defendant to make...
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