Tracy v. Berridge

• Decision Date: 18 May 1914
• Docket Number: No. 11096.,11096.
• Citation: 167 S.W. 1176,180 Mo. App. 220
• Parties: TRACY v. BERRIDGE.
• Court: Missouri Court of Appeals

167 S.W. 1176

180 Mo. A. 220

TRACY v. BERRIDGE.

No. 11096.

Kansas City Court of Appeals. Missouri.

May 18, 1914.

1. FRAUDS, STATUTE OF (§ 116) —CONTRACTS FOR EXCHANGE OF REALTY FOR PERSONALTY —EXECUTION—SUFFICIENCY.

Under Rev. St. 1909, § 2783, requiring contracts for the sale of land to be in writing, signed by the party to be charged, and declaring that no contract for the sale of land, made by an agent, shall be binding on the principal unless the agent is authorized in writing, and under section 2784, providing that a contract for the sale of goods shall not be valid unless in writing, signed by the party to be charged, or his agent lawfully authorized, a contract for the exchange of real estate for a stock of merchandise, which is signed by the owner of the real estate and by an authorized agent of the owner of the stock acting under a parol contract of agency, is valid.

2. FRAUDS, STATUTE OF (§ 116)—UNAUTHORIZED SALE OF LAND—RATIFICATION—NECESSITY OF WRITING.

Under the statute of frauds, a ratification of an unauthorized contract for the sale of land must be in writing signed by the owner.

3. FRAUDS, STATUTE OF (§ 116) — SALE OF PERSONAL PROPERTY—RATIFICATION.

The rule that a ratification of an unauthorized sale of land must be in writing, signed by the owner, does not apply to a seller of personalty, and his ratification may be shown by parol.

4. FRAUDS, STATUTE OF (§ 110)—CONTRACTS FOR EXCHANGE OF REAL ESTATE—DESCRIPTION —SUFFICIENCY.

A contract for the exchange of land for a stock of merchandise, which describes plaintiff's farm as "80 acres of land 1¾ miles N. of Merwin, Bates county, Mo.," sufficiently describes the land within the statute of frauds.

Appeal from Circuit Court, Vernon County; B. G. Thurmond, Judge.

Action by L. G. Tracy against L. G. Berridge. From a judgment for plaintiff, defendant appeals. Affirmed.

Wheeler & Switzer, of Topeka, Kan., and Charles E. Gilbert, of Nevada, Mo., for appellant. Lee B. Ewing, of Jefferson City, and H. C. Clark, of Nevada, Mo., for respondent.

JOHNSON, J.

Plaintiff sued to recover damages he sustained from a breach by defendant of a written contract to exchange a stock of merchandise for a farm owned by plaintiff. Defendant claims he did not sign the contract nor authorize any one to sign it for him. A trial by jury resulted in a verdict and judgment for plaintiff, and defendant appealed.

Defendant, who lived in Kansas, owned a stock of merchandise in the town of Stotesbury, Vernon county. His brother-in-law, Fred Gaylord, was in charge of the business as his agent under such general authority as to give the agent the appearance and reputation of being the owner of the business. About December 1, 1912, Gaylord, without disclosing his agency, employed a real estate agent to procure an exchange of the stock for a farm, and the agent began negotiations with brokers in Bates county with whom plaintiff had listed a farm of 80 acres he owned in that county near the town of Merwin. Gaylord was brought into these negotiations, inspected the farm, and signified his willingness to enter into a contract for an exchange. Plaintiff, who lived in Platte county, was notified and went to Stotesbury, where he and Gaylord entered into a written contract for the exchange of the equity in the farm owned by plaintiff for merchandise of the value of $3,800. The contract described the farm as "80 acres of land 1¾ miles N. of Merwin, Bates county, Mo.," and required plaintiff to execute and deliver to defendant "a general warranty deed thereto, properly executed and free and clear of all liens and incumbrances," except a mortgage of $1,400, which defendant assumed. The contract was signed by plaintiff, and Gaylord affixed the name of defendant as the other signatory party. This was the first intimation plaintiff or any other person connected with the transaction had that Gaylord was acting as the agent of defendant and not for himself. The contract was signed December 6, 1912, and it was agreed that plaintiff and defendant should meet at Stotesbury four days later to complete the exchange. They met at the appointed time, and there is abundant evidence introduced by plaintiff to the effect that defendant, with full knowledge that Gaylord had signed his name to the contract and with knowledge of the contents thereof, ratified the sale and agreed to perform the contract. But a creditor of defendant had just caused a writ of attachment to be levied on the stock, and, when two or...