Mantz v. Maguire

Rombauer, P. J. The cause of action stated in the petition is to the effect that, on the fifth day of June, 1890, the defendants, claiming to act as the agents of one George R. Taylor, and claiming to have authority, from him to do so, entered into a written contract with the plaintiffs for the sale of certain lots belonging to Taylor in the city of St. Louis, in which the plaintiffs agreed to pay for the property the sum of $3,000 upon the terms set forth in the contract; that it was stipulated that the property should be conveyed to the plaintiffs by warranty deed, free from all liens, except the taxes of 1891. The contract, which is filed with the petition, reads: “St. Louis, June 5, 1890. “Received from E. S. Williams and H. P. Mantz the sum of $50 in part payment of the purchase money for the following described property, to-wit: Lots 42, 43 and 41, fronting seventy-five feet south side of Walnut street, by a depth of one hundred and fourteen feet and three-twelfths feet, in city block number 1699, this day sold to E. S. Williams and H. P. Mantz for $3,000, to be paid as follows: $1,000 cash, — 142 — the $2,000 balance to be paid in one and two years, privilege to pay same any time before maturity, secured by deed of trust on property, with interest at the rate of six per cent, per annum on deferred payments. Should the title prove defective beyond remedy, then this contract shall be void, and the $50 hereby paid shall be returned to said E. S. Williams and H. P. Mantz and examination fee paid by seller. Title to be conveyed by warranty deed, excepting taxes for the year 1891, and all taxes thereafter, which purchaser assumes to pay. It is hereby agreed that, if said E. S. Williams and H. P. Mantz do not make cash payment of $950 within ten or fifteen days from the date hereof, then this contract to be absolutely void and no longer binding between the parties hereto, if so determined by the seller .herein; and the $50 payment hereon is to be forfeited as liquidated damages for the purchasers’ failure to execute this contract. “Witness our hands hereto and in duplicate hereof this fifth day of June, 189-. “John Maguire & Co., “Agents, by Wm. A. Maguire, [Seal] “E. S. Williams, [Seal] “H. P. Mantz. [Seal]” It is then averred that the plaintiffs paid the $50 earnest money when the contract was delivered, and that they were ready and offered within the time specified to perform all other things required of them under the contract, but that Taylor refused to carry it out, claiming that the defendants had no authority to bind him in a contract for a sale of the lots. The plaintiffs further allege that thereafter they instituted a suit against Taylor for specific performance of this contract, in which action they were defeated on the ground that the defendants had no legal authority to make the sale. The petition then concludes by aver — 143 — ring a want of authority in the defendants to make the contract; that the lots at the time of the breach were worth $5,000, and that the plaintiffs were damaged on account of the refusal of Taylor to complete the sale in the sum of $2,500. The answer was a general denial. The cause was tried by a jury and resulted in a verdict and judgment for plaintiffs for $1,251.25. The defendants have appealed. The plaintiffs gave evidence upon the trial tending to show that the defendants in negotiating the sale, in question, acted as agents of George R. Taylor, and that such fact was known to the plaintiffs, all of which evidence was admitted without any objection. The plaintiffs also gave in evidence a number of letters written to the defendants by George R. Taylor, their principal, from which it appeared that the sale evidenced by the memorandum was beyond their authority, as they were neither authorized to conclude a bargain without first submitting it to their principal, nor authorized to sell on credit. It was shown that, in the action for specific performance brought by the plaintiffs against Taylor, the defendants were requested to produce whatever authority they had from Taylor to make this sale, and had produced these letters as showing such authority, and that one of the defendants testified in that suit that such letters contained all the authority they had. These letters were written in the fall of 1889 and spring of 1890. The plaintiffs also gave evidence showing a difference, in excess of the verdict actually recovered, between the market value of the property mentioned in the memorandum and its price as stated in the memorandum.- • The defendants offered evidence tending to show that the difference between the market price of the property and the price mentioned in the. memorandum was trivial, if there was any. The defendants then — 144 — offered in evidence a power of attorney, not under seal, executed by Greorge R. Taylor to John Maguire in August, 1887, and before the firm of John Maguire & Co. was formed, giving him general power to sell the land in controversy, but containing no authority to sell on credit. This power of attorney gave to John Maguire power of substitution, but it did not appear that he had ever exercised such a power, nor did it appear that the member of the firm, who actually negotiated the sale, had any knowledge of its existence. The plaintiffs objected to the introduction of the power in evidence on the grounds, among others, that it was a power to John Maguire individually, and could not be exercised either by the firm or any other member of it; that it conferred no authority even on John Maguire to make .a sale on credit, and that the subsequent correspondence between Taylor and the firm was tantamount to a revocation of the power, conferred upon John Maguire by it, and that these were questions of law for the court, as all the writings were before the court. The court excluded the power of attorney, and the defendants excepted. The defendants also offered in evidence a letter written by them to Greorge R. Taylor five days after the date of the memorandum of sale, covering the deed to the plaintiffs and notes executed by them for deferred payments, and stating, among other things: “If you want cash for the property we can probably cash the notes for you without any trouble.” This letter the court also excluded, and the defendants excepted. The defendants, at the close of the plaintiffs’ evidence, asked, an instruction in the nature of a demurrer to the evidence, and, at the close of the entire case, they asked for a further instruction that the plaintiffs could not recover in excess of the $50 earnest money paid, and interest thereon. They also — 145 — asked this instruction: “If the jury find from the evidence that the defendants had authority in writing from George R. Taylor to sell the lots described in the petition, then the verdict must be for the defendants.” The court refused these instructions, and upon its own motion charged the jury as follows: , “Gentlemen of the jury: There is no evidence before you in this case that the defendants, at the time they executed the contract for the sale of the lots on Walnut street, mentioned in the evidence, dated June 5, 1890, and read in evidence, had any legal authority from the owner thereof to sell the same in manner and form, or upon the terms stated in said contract. ‘ ‘If you believe from the evidence that, in making said contract, the defendants as a firm, or either of them acting in the firm name of John Maguire & Co., acted for Geo. R. Taylor, and that the plaintiffs so understood it at the time of the transaction; and if you also believe from the evidence that Geo. R. Taylor was at the time the owner of the property described in said contract ; and if you also believe from the evidence that, within ten or fifteen days after the fifth day of June, 1890, the plaintiffs were ready and able and willing to comply with the terms of said contract on their part, and that they demanded from said defendants a deed for the property executed by said George R. Taylor, and then offered .to comply with the said contract on their part, but that defendants, or some one of them, informed the plaintiffs that they could not comply with said contract, because the said Taylor refused to execute or deliver such deed for said property, then the plaintiffs are entitled to recover. “And, in such case, you should assess the plaintiffs’ damages at the sum of $50, with interest thereon at the rate of six per cent, per annum from August 15, 1891 (the date when the suit was instituted), to this date. — 146 — “And if you find and believe from the evidence that the, fair and reasonable market value of the property mentioned in the evidence and in said contract of June 5, 1890, was on the day when said plaintiffs demanded such deed therefor, if you find from the evidence that such demand was made before June 20, 1890, was greater than the price fixed by said contract, then you should add to the sum of $50, and interest above mentioned, such additional sum as you may find and believe from the evidence that the fair and reasonable market value of the property exceeded said contract price. “By the term market value is meant such sum as property will bring in the market, when offered for sale by an owner who is willing, but is not obliged, to sell to purchasers who are willing, but are not obliged, to buy the property.” The errors assigned are that the court erred in its rulings on the evidence and instructions. Before proceeding to the examination of those questions of law, which one member of the court claims arise upon the record, we will dispose of those propositions of law which we can decide with unanimity, as properly raised by the record. We are all of opinion that the court did not err in rejecting the power of attorney in evidence, nor in rejecting the defendant’s letter written to Taylor five days after the date of the memorandum. The defendants contend that the interpretation to be put upon the power and letters of Taylor raised a question of fact for the consideration of the jury, and, in support of that claim, refer us to Primm v. Haren, 27 Mo. 205, and Huth v. Railroad, 56 Mo. 202. The interpretation of writings is always for the court, except in two cases: First, where the writing is ambiguous, and the ambiguity must be solved by extrinsic unconceded facts, and, next, where the — 147 — writing is merely adduced as containing evidence of certain facts, from which different inferences may be drawn, and where it is for the jury and not the court to draw the inferences. Those were the questions decided in the cases cited. No such question arises in the case at bar. Laying all other considerations out of view, it must be evident that neither the power of attorney nor the. letters authorized a sale by the defendants on credit. Mechem on Agency, secs. 325, 358; State v. Bank, 45 Mo. 528, 538, and cases cited. The defendants’ letter to Taylor, written some time after the sale, that they could probably cash the notes without any trouble, was not an offer to pay cash for the notes, conceding that such offer would have been availing. The plaintiffs called as a witness as to values one Dunnerman, a real-estate agent in the city, who testified that he made the value of property in that locality a particular study, but who could not give instances of actual sales at definite figures. This witness placed the value of the property at the date of the memorandum at $75 per foot. His evidence was objected to on the ground that he had not properly qualified. The objection was properly overruled. Testimony as to value in such cases is matter of opinion, and the witness, under the rule stated in St. Louis Ry. Co. v. Calkins, 90 Mo. 538, 543, and cases there cited, was competent to give an opinion; its weight was for the jury. As the result shows, the jury did not attach much weight to the testimony of this witness, since their award of damages is less than any of the plaintiffs’ witnesses on that subject testified to. • Nor is there any force in the objection, that it was not shown that Greorge R. Taylor had any title to this property. John Maguire, one of the defendants, testified that the lots belonged to Taylor; that he had — 148 — charge of the property for twenty years; that Taylor-inherited the property from his father, who died in 1880, and there was not even any countervailing evidence on that question. The measure of damages, therefore, under the rule laid down by the supreme-court in Hartzell v. Crumb, 90 Mo. 629, was correctly stated in the instructions of the court to the jury. The foregoing considerations, in the opinion of the majority of this court, dispose of every question-which is properly raised on the record before us. They necessarily lead to the affirmance of the judgment. As, however, one of the members of the court is of opinion that other questions do properly arise upon this record and are decisive in favor of the defendants, we will enter into consideration of those questions for the purpose of showing that they do not properly arise-upon the record and for the purpose of showing further that, even if they were properly raised, the defendants-could not derive any benefit therefrom. We pursue this course because the questions thus mooted are of the gravest importance, affecting the practice both in trial courts and on appeal. It was argued by the counsel for the defendants-for the first time in this court that the memorandum of sale, forming the foundation of plaintiffs’ cause of action, was not - a sufficient memorandum under the statute of frauds to show a contract on the part of Taylor, because such memorandum did not state the name of the owner of the property. It was further argued that this point was sufficiently raised in the court below by a plea of the general issue, and a. demurrer to the evidence. In answer to this argument a majority of the members of the court hold that the question, whether the memorandum was sufficient, cannot be raised in this court for the first time; that the defense of the statute of frauds was not properly raised. — 149 — in the trial court, and that, even if raised, it would have been unavailing. It is a salutary rule of appellate procedure, sanctioned by a long line of uniform decisions in this state, that the appellant cannot try his case on one theory in the trial court and upon another theory on appeal. Trigg v. Taylor, 27 Mo. 245; Capital Bank v. Armstrong, 62 Mo. 59, 65; Walker v. Owen, 79 Mo. 563; Wheeler v. Ins. Co., 6 Mo. App. 235; Barker v. Berry, 8 Mo. App. 446; Nance v. Metcalf, 19 Mo. App. 186. But, even if the defendant could be heard to raise for the first time in this court an objection to evidence •offered in the trial court, and even if they could be permitted to first prove a contract orally in the trial ■court themselves, and then come into the appellate court and say the contract is not proved because it has not been established by written evidence (which the majority of the court holds cannot be done), still the defendants must fail, because, in the opinion of the majority of this court, the rule stated in Higgins v. Senior, 8 Mees. & W. 834, is the law of this state. In that case Mr. Baron Parke, in delivering the opinion, said: “There is no doubt that where such an agreement is made it is competent to show that one or both of the parties were agents for other persons, and acted as such agents in making the contract, so as to give the benefit of the contract on the one hand to, and charge with liability on' the other, the unnamed principals; and this, whether the agreement be or be not required to be in writing by the statute of frauds; and this evidence in no way contradicts the written agreement. It does not deny that it is binding on those whom, on the face of it, it purports to bind; but shows that it also binds another, by reason that the act of the agent, in signing the agreement, in pursuance of his authority, is in law the act of the principal.” — 150 — Judge Leonard, whose learning has reflected great credit on the bench of this state, in the case of Higgins v. Dellinger, 22 Mo. 397, 400, not only adopts this statement of the law as announcing a correct principle, but also adopts the statement of Judge Porter in Hopkins v. Lacouture, 4 La. Ann. 64, that the liability of the principal depended on the act done, and not on the form in which it is executed. The only difference is that, where the agent contracts in his own name, he adds his personal responsibility to that of the person who has empowered him. In Briggs v. Munchon, 56 Mo. 467, 472, the rule in Higgins v. Senior is again set out in full and expressly approved, and so in the late case of Kelly v. Thuey, 102 Mo. 522, 528, where the learned judge delivering the opinion states that it has been approved in this state and in other jurisdictions. The rule was held inapplicable in the last case, because the covenants contained in the memorandum were those of the agent; because there was nothing to show that the grantor knew who the real 'principal was, and because to have substituted the name of the principal for that of the agent would have been to make an entirely different contract for the parties than they had made themselves. In the case at bar the memorandum is not under seal, and the technical rule which prevents an agent from binding his principal under seal, when he has no authority under seal himself, has no application'. The memorandum upon its face discloses that the defendants were contracting as- agents. The evidence that they did contract as agents, which is not only not objected to, but offered in a great measure by themselves, in no way contradicts the memorandum. On what conceivable theory the proof thus offered failed to show that they intended to bind their principal, and — 151 — did bind him as far as they had power to do so, passes our comprehension. Judgment affirmed. Judge Thompson concurs. Judge Biggs dissents.