Moots v. Cope

REYNOLDS, P. J. (after stating the facts).— It is provided by section 3418, Revised Statutes, 1899, that “no contract for the sale of lands made by an ageu" shall be binding upon the principal, unless such péer¡^ is authorized in writing to make said contract’ ^ ^ beyond question in this case that there is a su^‘ stantial variance between the contract wt-mh the agents made with plaintiff, that is, the confrii(d sued on, and the contract which Mrs. Summer®- had authorized her agents to make, that proof of m execution of the latter by Mrs. Summers did not N&P out or sustain the excution by the agents of the contract sued on. Necessarily, therefore, plaintiff’s case failed, unless there was a ratification of the act of the agents in making the contract which they did make by Mrs. Summers and proof that that ratification was in writing. Referring to the amendment engrafted on to section 3418, supra, by the Act of 1887, which added to the section the words above quoted, Judge Marshall, in Johnson v. Fecht, 185 Mo. 335, 1. c. 343, 83 S. W. 1077, says that since the passage of that amendatory act it has uniformly been held that it is necessary to show that the agent had written authority “to make the contract which he does make,” citing Hawkins v. McGroarty, 110 Mo. 546, 19 S. W. 830; Roth v. Georger, 118 Mo. [85] 556, 24 S. W. 176; Fox v. Courtney, 111 Mo. 147, 20 S. W. 20; Greening v. Steele, 122 Mo. 287, 26 S. W. 971. In order to bind tbe principal by tbe contract of bis agent, it must be shown that tbe authority given to tbe agent was in writing and was such authority as authorized tbe agent to make tbe contract sought to be enforced. Nor can tbe contract for a sale of realty which tbe principal gives tbe agent, authorizing tbe agent to make a certain contract, be varied by a subsequent parol agreement between them. [Rucker v. Harrington, 52 Mo. App. 481; Newman v. Bank of Watson, 70 Mo. App. 135; Beckmann v. Mepham, 97 Mo. App. 161; Warren v. Mayer Mfg. Co., 161 Mo. 112, 61 S. W. 644.] So that tbe attempt to show verbal acquiescence in tbe altered contract oh tbe part of Mrs. Summers was, in effect, an attempt to vary by parol tbe contract which Mrs. Summers bad authorized her agents to make. That this cannot be done has been held in many cases, of which those last cited are examples. No matter how much testimony might have been offered or introduced as to tbe oral declarations of Mrs. Summers, tending to show acquiescence in the altered contract, it all falls within the prohibitions of the statute. It is to be understood that we are speaking now of verbal assent, not of acts; for acts may raise an estoppel. In the case of Johnson v. Fecbt, supra, considering the question of ratification of a contract made without authority in the first instance, the court (1. c. 345), referring to Hawkins v. McGroarty, supra, and to other cases cited, bolds that the ratification by a principal of a contract made by an agent, who had no written authority to make the contract in tbe first instance, must also be in writing, except where tbe principal was shown to have been guilty of such conduct as amounted to an equitable estoppel. While tbe original reply in this-case was a general denial, setting up neither estoppel nor ratification, plaintiff, after tbe close of the evidence,, as will be seen by tbe statement, offered to file an amend [86] ed reply, which the court, however, declined to permit. Referring to that proposed reply, it will he observed 'that it pleads ratification. When the law requires a contract to be made in a particular manner, an allegation -that it was made is always held to imply that it is made in lawful form. [Stillwell v. Hamm, 97 Mo. 579, 11 S. W. 252.] So that it is to be presumed that when plaintiff in the proposed amended reply, plead ratification, he intended legal ratification, which in this case, would be ratification in writing. Giving plaintiff the benefit of all that the proposed reply entitles him to, therefore, it is to be said that the court properly refused permission to file the amended reply for two reasons: First, it practically presented a new issue from that made by the petition, for the petition bottomed the action on the original contract, while the reply shifted it on to the ratification; and secondly, it was properly refused, because there was no evidence whatever in the case tending to •show that any legal ratification, that is, a ratification in writing, had been made, exactly the contrary having 'been distinctly admitted by counsel for plaintiff when he said, in answer to a question of the court or in answer to an objection made, that it was not pretended or claimed that there had been a ratification in writing. Recurring to what is said in Hawkins v. McGroarty, supra, and repeated in Johnson v. Fecht, supra, that the ratification must be in writing, “except where the principal was shown to have been guilty of such conduct as amounted to an equitable estoppel,” it is to be said in reference to the case at bar, that neither a plea of estop-pel was entered, nor acts amounting to an estoppel plead, either in the petition or in the reply, or in the proposed amended reply, and it goes without saying, that an estoppel, to be available, must be plead. Counsel for plaintiff refer us to the case of Gelatt v. Ridge, 117 Mo. 558, 23 S. W. 882, as authority for the proposition that subsequent ratification and approval is equivalent to prior authority and may be by parol, [87] but an examination of that case shows that it is one in which the agent was suing the principal for his commissions, and in such case it has been held in many decided cases, as for example Gerhart v. Peck, 42 Mo. App. 644, and Gwinnup v. Sibert, 106 Mo. App. 709, 80 S. W. 589, that it was not necessary that plaintiff should show a 'written authority to act as a real estate agent in order to entitle him to recover commisions on finding a purchaser. See also Gelatt v. Ridge, supra. Our conclusion on the case is, that the contract sned on, not being the contract which the principal had authorized her ageuts to make in her written agreement with them, and there being no proof or tender of proof of ratification of the contract which was made having been by writing, and there being no plea of estoppel as against Mrs. Summers, by acts or conduct on her part, the trial court correctly excluded the contract sued on from evidence. That necessarily ended the plaintiff’s case. It is wholly immaterial, therefore, to the determination of this case, to go into the other points so fully and learnedly briefed by counsel, touching errors in exclusion of testimony on other grounds, as on the capacity of witnesses to testify, or as to proof of conversations between Mrs. Summers and various parties to the transaction. Whether the court was right or wrong in its rulings on these questions, with the insuperable objection staring us in the face, that there was no written authority for making the contract which was made land no written ratification of it after it was made, it is impossible for plaintiff to recover in this action. The judgment of the circuit court is affirmed. All concur.