Stotesburg v. Massengale

• Decision Date: 30 January 1883
• Citation: 13 Mo.App. 221
• Parties: H. A. STOTESBURG ET AL., Respondents, v. H. F. MASSENGALE, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 221

H. A. STOTESBURG ET AL., Respondents,

v.H. F. MASSENGALE, Appellant.

St. Louis Court of Appeals, Missouri.

Jan. 30, 1883.

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

OVERALL AND JUDSON, for the appellant: To constitute a contract by letter, the parties must agree, ad idem, to the same thing in the same sense. There must be a clear accession on “both sides to one and the same set of terms.”--1 Chitty on Con. 15, note; Bourne v. Shapleigh, 9 Mo. App. 64; Herndon v. St. Louis R. Co., Sup. Ct. Mo., June, 1882 (not published). “If acceptance modifies the proposition in any sense, however trifling, it is no more than a counter-proposition.”-- Jenness v. Mt. Hope Iron Co., 53 Me. 23. “Where there is a misunderstanding as to the terms of a contract neither party is bound in law or in equity.”-- National Bank v. Hall, 101 U. S. 43 (per Justice Swayne); Utley v. Donaldson, 94 U. S. 29; Baker v. Johnson County, 37 Iowa, 86. Where the promise is made before the credit is given, where any credit is given to the party to whom goods are furnished, or he is liable at all, the contract is collateral, and not original.--Brandt on Surety., sects. 63, 64; Cahill v. Bigelow, 18 Pick. 370; Glenn v. Lehune, 54 Mo. 45. The negotiations manifestly contemplated further action to fix the terms of any definite contracts.-- Lyman v. Robinson, 14 Allen, 254; Ridgway v. Wharton, 6 H. L. Cas. 268, 304.

CHARLES F. JOY and G. D. BANTZ, for the respondents.

BAKEWELL, J. delivered the opinion of the court.

The petition alleges that the defendant was the agent of the plaintiffs to solicit purchasers of cotton and to collect money as it became due from purchasers of cotton at St. Louis; that, as such agent, the defendant collected $881 on account of the plaintiffs, which they have failed to remit. The answer is a general denial. The cause was tried without a jury, and there was a finding and judgment for the plaintiffs. The action was originally against Massengale and Haynes; but was dismissed as to Haynes.

It appears that Massengale, Cohen & Co. were in business as cotton buyers. Massengale resided in St. Louis and Cohen at Memphis. About December 1, 1880, they practically went out of business at St. Louis. Haynes, before that time, had been their book-keeper, and they then no longer needed his services, and his salary ceased. He retained their office, which remained as before, and was to pay the rent. Massengale was away during most of the time covered by the transactions hereafter set forth.

Haynes, on November 27, 1880, wrote to McClanahan, a member of the plaintiffs' firm, the following letter, marked “Confidential.” The letter is addressed to New York, where the plaintiffs were doing business:--

“I am in the employment of Messrs. Massengale, Cohen & Co., and attend to the future branch of their business. Messrs. M., C. & Co. have as their New York correspondent Messrs. Henry Hentz & Co.

They desire to retain Messrs. H. H. & Co.'s business for the purchase of spot cotton in this market, but from their disinclination to give them reports by wire of their opinion as to the course of the market, they lose a great deal of business. Other brokers receive from their New York correspondents daily, early morning telegrams, giving the status of the market, and an opinion as to its probable course, which, as you can appreciate, has its influence upon the operators here.

The future business which is proposed to be done with your house, although in my name, will be really the business of Messrs. M., C. & Co., and for which they will be responsible. This explanation Major Massengale thought wiser to defer until your arrival in our city. The relations between Messrs. H. H. & Co. and Messrs. M., C. & Co. have been, and are at present, of the most pleasant nature. It would be impossible to get orders for the purchase and sale of New York contracts, if I demanded an immediate margin. No other New York house requires it in this market. I solicit none but reliable and responsible parties--those that can well afford to lose. I have declined, and would do so again, to take orders from weak parties; if such parties are importunate, I require a margin before wiring the order, and even then put in stop instructions upon the exhaustion of the margin. I write this letter of explanation, which I trust you will treat confidentially, in consequence of an inquiry you have instituted in regard to my standing, etc., through Dunn's Commercial Agency.

Very respectfully,

L. A. HAYNES.”

This letter was read by Massengale. The matter referred to in it had been talked over between him and Haynes before the letter was written. At the foot of the letter Massengale wrote as follows:--

“FRIEND MAC: I hope you will take the above as confidential. M., C. & Co. represent Mr. Hentz, which he would cancel if we divided our business. He does not keep us posted, and won't express an opinion so as to draw orders to buy or sell, and we desire some one that will. Will explain further when you come.

Yours,

H. T. M.”

To this letter the plaintiffs replied as follows:--

“60 BROAD ST., NEW YORK, Dec. 2, 1880.

L. A. Haynes, Esq., St. Louis, Mo.

DEAR SIR: We are in receipt of your favor 27th ult. We will, of course, respect its confidential character. We will try and do your business satisfactorily, should we undertake it, keeping you advised of the changes in the market, and giving you an opinion of its course. We are doing a strictly commission business. We are conservative and prudent, and while willing to accept Messrs. Massengale, Cohen & Co.'s guarantee for a reasonable amount, we would expect you to remit promptly margins. Their guaranty to cover a few friends you may wish to indulge, which we would from experience advise you against.”

Massengale read this letter shortly after it was received Plaintiffs did not communicate in any way with any member of the firm of Massengale, Cohen & Co. Haynes then began taking orders for “futures,” which he forwarded to plaintiffs. Haynes did the business in his own name, and the commissions were his.

On December 17th plaintiffs wrote to Haynes a letter, in which, after speaking at length of the market, they say:--

“Please have Messrs. Massengale, Cohen & Co. execute the guarantee papers, say $2,000 or $2,500, we presume will cover it. You are the only party we have on our books without margins. We go on the principle that a speculator should always have funds on hand. You have good names, but they may not want to pay when they lose. We have had cases of this kind with good parties.”

Haynes answered at once, saying: “Major Massengale is South at present, and will return some time during Christmas week, when he will attend to the guarantee papers.”

On January 11, 1881, plaintiffs write to Haynes in regard to markets, and in answer to a telegram from him. At the end of this letter they say: “We have not heard from Major Massengale yet.”

No guarantee papers were ever executed. Some of the customers who had lost on their speculations paid their margins to Haynes. Of the money thus collected, Haynes appropriated to his own use $881.68 toward the end of January, 1881. He was arrested for this at the instance of plain...