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

• Citation: 60 S.W.2d 41,332 Mo. 701
• Decision Date: 20 April 1933
• Docket Number: 32390
• 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
• Court: United States State Supreme Court of Missouri

60 S.W.2d 41

332 Mo. 701

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

April 20, 1933

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 F. 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. Cooley and Fitzsimmons, CC., concur.

OPINION

WESTHUES

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. 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 Kings-highway and that they entered into a written contract with one Arch R. McConnell to purchase the same upon terms specified in the contract. It was asserted by the plaintiffs that McConnell, in executing the contract, did so as the agent for the defendant, and that the defendant therefore, was liable for damages for the breach of such contract made by its agent.

"The defense was that in the absence of written authority for McConnell to purchase, the contract of purchase made by him was not binding upon the defendant.

"The court sustained the motion for new trial upon two grounds; that it erred in admitting the contract in evidence, and in refusing defendant's demurrer to the evidence at the close of the plaintiffs' case.

"The sole question presented on the appeal is whether the defendant is bound by the contract of purchase signed by Mr. McConnell, defendant's purchasing agent, who was not shown to have written authority from the defendant to make such purchase.

"Section 2967, Revised Statutes of Missouri 1929, which was Section 2169 of the Revised Statutes of Missouri 1919 when the contract was made (Missouri Statutes Annotated), provides, so far as it is material to a consideration of the matters here involved, that: 'No action shall be brought to charge . . . any person . . . upon any contract made for the sale of lands, tenements, hereditaments, or an interest in or concerning them, or any lease thereof . . . unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized, 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.'

"Previous to an act of the Legislature adopted in 1887, the above statute ended with the words, 'or some other person by him thereto lawfully authorized' (Rev. St. 1879, sec. 2513); but by the Amendment of 1887 (Laws 1887, p. 195) there was added to the section the words, '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.'

"The defendant, in support of the action of the trial court, contends that because prior to the adoption of the amendment, our courts held that the statute applied both to the sale and purchase of lands (Schlanker v. Smith, 27 Mo.App. 522; Culligan v. Wingerter, 57 Mo. 241; Scarritt v. St. John's M. E. Church, 7 Mo.App. 174), the amendment must likewise apply to both, and, consequently, a contract by an agent to purchase land is not binding unless his authority to purchase is evidenced by writing.

"In other words, according to defendant's contention, the statute as amended means that no action can be maintained to charge any person (either seller or purchaser) upon any contract involving lands unless the agreement or some memorandum thereof shall be in writing and signed by the party to be charged therewith, or some other person by him thereto lawfully authorized in writing.

"In considering this statute as amended we are bound to give effect to all the provisions thereof and to so rule, if possible, that no part is destroyed or made meaningless by the construction of other parts (State ex rel. v. Offutt, 223 Mo.App. 1172, 26 S.W.2d l. c. 831), and we have no right, by construction, to substitute our ideas concerning legislative intent contrary to that unmistakably expressed in legislative words. [State ex rel. v. Offutt, 223 Mo.App. 1172, 26 S.W.2d l. c. 831.] To construe the statute as defendant would have us construe it would make meaningless the amendment to the statute. It seems perfectly clear to us that if the Legislature had intended the amendment to apply both to the purchaser and the seller it would have limited its amendment to the insertion of the words 'in writing' immediately following the word 'authorized' preceding the amendment; but when we consider the conditions which the amendment was probably intended to correct, as we must (Louisiana Purchase Exposition Co. v. Schnurmacher, 151 Mo.App. 601, 132 S.W. 326), we think there can be no doubt that the amendment was intended to be limited to the very thing which is stated therein.

"In the case of Lindhorst v. Orphan Asylum, 231 Mo. 392, 132 S.W. 666, 670, the court said: 'It is common knowledge that, prior to the enactment of the amendment to said Section 3418 (now Section 2967, Rev. St. 1929) innumerable suits had been brought and prosecuted for the specific enforcement of contracts for the sale of real estate made by agents who had no written authority authorizing them to make the sales; also for the recovery of commissions alleged to be due such agents for making such sales. In order to put a stop to that character of litigation, and for the purpose of preventing fraud and perjury, the amendment in question was wisely enacted.'

"It seems perfectly clear to us, therefore, that the Legislature adopted the amendment with particular reference to the sale of real estate to obviate the difficulty stated by the Supreme Court in the above case and that, therefore, the statute as it existed previous to the amendment only is applicable to the situation before us. If the agent in the present case was duly authorized to purchase, as we must assume from...