State ex rel. Sears, Roebuck & Co. v. Haid, 32390.

• Decision Date: 20 April 1933
• Docket Number: No. 32390.,32390.
• Citation: 60 S.W.2d 41
• Court: Missouri Supreme Court
• Parties: STATE EX REL. SEARS, ROEBUCK & CO., a Corporation, Relator, v. GEORGE F. HAID, WILLIAM DEE BECKER and SIMON G. NIPPER, as Judges of the St. Louis Court of Appeals.

60 S.W.2d 41 STATE EX REL. SEARS, ROEBUCK & CO., a Corporation, Relator,
v.
GEORGE F. HAID, WILLIAM DEE BECKER and SIMON G. NIPPER, as Judges of the St. Louis Court of Appeals. No. 32390. Supreme Court of Missouri, Division Two. April 20, 1933.

Certiorari.

OPINION OF THE COURT OF APPEALS QUASHED.

Bryan, Williams, Cave & McPheeters for relator.

(1) The decision of the Court of Appeals that the last clause of Section 2967 of the Revised Statutes of 1929, "And 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," applies only to the agent of the vendor and seller and not to the agent of the vendee or purchaser is in conflict with and contradictory to the latest previous and controlling rulings of this court and with the decisions on the same question of the Kansas City Court of Appeals. Ivory v. Murphy, 36 Mo. 534; Luckett v. Williamson, 37 Mo. 389; Culligan v. Wingerter, 57 Mo. 241; Walker v. Owen, 79 Mo. 563; Dunham v. Hartman, 153 Mo. 625; Schlanker v. Smith, 27 Mo. App. 516. (2) The opinion of the Court of Appeals is likewise in direct conflict with and contradictory to the latest previous and controlling decisions of this court on the rules of statutory construction, for this court has repeatedly held that, where words or phrases employed in a statute have been construed by the courts of last resort to have been used in a particular sense in a previous statute on the same subject, they are presumed, in the absence of a clearly-expressed intent to the contrary, to be used in the same sense in the new or amended statute as in the previous statute. Kelly v. Thuey, 143 Mo. 422; State v. Schenk, 238 Mo. 429; Handlin v. Morgan County, 57 Mo. 114; Easton v. Courtwright, 84 Mo. 27; State ex inf. v. Meeker, 317 Mo. 719; State ex rel. v. Daues, 14 S.W. (2d) 990; Thorn v. Browne, 257 Fed. 519.

Earl M. Pirkey for respondents.

(1) There are no decisions of the Supreme Court holding that the authority of an agent from his principal for the purchase of lands shall be in writing. Therefore the decision of the Court of Appeals whether right or wrong is not in conflict with any decision of the Supreme Court and therefore should not be quashed. (2) The authority of an agent to buy land for his principal does not have to be in writing. Sec. 2169, R.S. 1919; Lindhorst v. Orphan Asylum, 231 Mo. 392; Tracy v. Berridge, 180 Mo. App. 224; Johnson v. Fecht, 94 Mo. App. 616; Johnson v. Fecht, 185 Mo. 342; Lead Co. v. White, 106 Mo. App. 230; Young v. Ruhwedel, 119 Mo. App. 34; Kirkpatrick v. Pease, 202 Mo. 471; Hawkins v. McGroarty, 110 Mo. 546; Roth v. Goeger, 118 Mo. 556. Therefore the decision of the Court of Appeals is correct.

WESTHUES, C.

Relator in this proceeding seeks to quash the opinion of the St. Louis Court of Appeals in the case of Cook v. Sears, Roebuck & Co., 51 S.W. (2d) 134, on the ground that it is in conflict with decisions of this court. [1] On certiorari, our review is limited to a determination of whether the opinion of the Court of Appeals conflicts with a principle of law announced by controlling decisions of this court. The opinion of the Court of Appeals reads as follows:

"This is an appeal from an order granting defendant's motion for new trial upon a judgment in favor of the plaintiffs.

"The plaintiffs brought suit for loss sustained by reason of defendant's failure to perform a contract of purchase of certain real estate owned by plaintiffs at 1236 North Kings-highway boulevard, St. Louis. The contract relied upon was signed by the plaintiffs as owners of the property and by A.R. McConnell as the purchaser.

"The evidence disclosed that the plaintiffs owned the real estate at 1236 North...