14 S.W. 869 (Mo. 1890), Allen v. Chouteau

Citation:14 S.W. 869, 102 Mo. 309
Opinion Judge:Black, J.
Party Name:Allen et al., Appellants, v. Chouteau, Appellant
Attorney:Leonard Wilcox for plaintiffs, appellants. G. A. Madill, G. H. Shields and Lionberger & Shepley for appellant, Chouteau.
Judge Panel:Black, J. Barclay, J., dissents.
Case Date:December 15, 1890
Court:Supreme Court of Missouri
 
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Page 869

14 S.W. 869 (Mo. 1890)

102 Mo. 309

Allen et al., Appellants,

v.

Chouteau, Appellant

Supreme Court of Missouri

December 15, 1890

Appeal from St. Louis City Circuit Court. -- Hon. J. A. Seddon, Judge.

Reversed and remanded.

Leonard Wilcox for plaintiffs, appellants.

(1) The ruling below with respect to the measure of damages was erroneous. (2) The ruling whereby plaintiffs were allowed to recover only a part of the respective sums found to have been paid by their testator in compliance with the defendant's letter, on lands therein mentioned and embraced in the decree of foreclosure, was erroneous. 1 Addison on Cont. [8 Ed.] *182; 2 Parsons on Cont. [7 Ed.] *499, 501, note u; Connor v. Railroad, 59 Mo. 293. (3) In ascertaining defendant's meaning, that construction of his letter of December 6, 1877, should be adopted which was most to the advantage of plaintiffs' testator. Anson on Cont. [2 Ed.] *253; Bruner v. Wheaton, 46 Mo. 367, 368; Noonan v. Bradley, 9 Wall. 407. (4) It was error to overrule plaintiffs' exceptions to the report of the referee filed March 18, 1887, numbered 4, 7, 10, 11, 12, 17 and 21. (5) It was error to overrule plaintiffs' exceptions to the report of the referee filed November 23, 1887. (6) It was error for the referee and court to rule that plaintiffs could recover the amounts found to have been paid by their testator, in discharge of the taxes for the year 1877 and prior years, only, and that they could recover nothing for what he had paid to discharge the taxes of the year 1878. United States v. Bank, 6 Peters, 36-37; Goddard v. Seymour, 30 Conn. 401; District v. Sheridan, 47 Iowa. 184-5; Fowler v. Hoffman, 31 Mich. 209, 220; Scudder v. Coryell, 10 N. J. L. 345. (7) It was error for the referee to refuse to admit in evidence the tax receipt (Exhibit, numbered 5), for taxes of 1878, on lands in Stoddard county. (8) It was error for the court to overrule plaintiffs' exception, numbered 2, to the referee's report filed November 18, 1887. (9) It was error to refuse to permit plaintiffs to recover the amount paid by their testator in discharge of taxes for the year 1878 on lands in Scott county, and to refuse to permit Exhibit, numbered 8, being the receipt for said taxes, to be read in evidence. It was error to overrule plaintiffs' motion for a new trial. (10) The petition states a good cause of action, and if not defendant's objection comes too late. First. It was not necessary to allege or prove that a formal written agreement had been drawn up and signed. Wilson v. Board, etc., 63 Mo. 141; Bonnewell v. Jenkins, L. R. 8 Ch. Div. 70; Fowle v. Freeman, 9 Ves. Jr. 353; Oxford v. Provand, 2 P. C. App. 135, 146, 147; Thomas v. Deering, 1 Keen. 732, 742; Riggin v. Railroad, 73 Mo. 598. Second. The averments that defendant promised to refund if plaintiffs' testator would pay the taxes, and that plaintiffs' testator did pay the taxes relying on the promise, are sufficient. Hare on Contracts, pp. 377, 380; Bishop on Contracts, secs. 87, 329; Lindell v. Rokes, 60 Mo. 251; Miller v. McKenzie, 95 N.Y. 579; Morse v. Bellows, 7 N.H. 561, 564; Train v. Gold, 5 Pick. 380, 384, 386; Storm v. United States, 94 U.S. 76, 83; Barnstein v. Lans, 104 Mass. 216; Patton v. Hassinger, 69 Pa. St. 314; Lungstras v. Ins. Co., 48 Mo. 204; Reynolds v. Douglass, 12 Peters (U. S.) 504; Livingston v. Dugan, 20 Mo. 102; Hamilton v. Ins. Co., 5 Pa. St. 344; Langdell Select Cases on Contracts (1871), pp. 42, 985; Clark v. Russell, 3 Watts, 217; Houghawout v. Boisaubin, 18 N.J.Eq. 318. Third. Even if it be true that the petition contains neither an averment that plaintiffs' testator accepted defendant's letter nor an equivalent averment, and hence is defective, yet this omission is waived by the answer (Wagner v. Railroad, 97 Mo. 520; Stivers v. Horne, 62 Mo. 475; Henry v. Sneed, 99 Mo. 424; Garth v. Caldwell, 72 Mo 629); is cured by the verdict (R. S. 1889, sec. 2113, subdiv. 8; Grove v. Kansas City, 75 Mo. 672; Howell v. Reynolds Co., 51 Mo. 156; Bowie v. Kansas City, 51 Mo. 460, 462; Shaler v. Van Wormer, 33 Mo. 388); and under the circumstances of this case is not such a defect or error as affects the substantial rights of the defendant, or materially affects the merits of the case. Gordon v. Eans, 97 Mo., bottom p. 603; R. S. 1889, secs. 2100, 2303. (11) The evidence supports the findings of the referee and the judgment. Patton's Ex'r v. Hassinger, 69 Pa. St. 314; Reynolds v. Douglas, 12 Peters, 497; Lungstras v. Ins. Co., 48 Mo. 204; Soulard v. Peck, 49 Mo. 477, 479; Livingston v. Dugan, 20 Mo. 102; Authorities, ante, point 1, third. (12) Defendant's third point, first, is inconsistent with the express admissions of his answer; second, is not supported by the evidence, and, third, the alleged error was not excepted to by defendants. Lenox v. Harrison, 88 Mo. 491, syl. 2; Jayne v. Wine, 98 Mo. 404; Craig v. Scudder, 98 Mo. 664. (13) The admission of Thomas Allen's deposition was not error, and, if it was, no exception was preserved thereto. Loman v. Stocke, 94 Mo. 672; Adams v. Rogers, 69 Mo. 363; Greene v. Chickering, 10 Mo. 111; Gordon v. Little, 8 Serg. & Rawle, 547, 548, 549; Bogie v. Nolan, 96 Mo. 85, syl. 3; State v. Johnson, 76 Mo. 121, syl. 1; Caughlin v. Haeussler, 50 Mo. 126; Craig v. Scudder, 98 Mo. 664; Schluter v. Wiedenbrocker, 23 Mo.App. 440, 442; Blackwell v. Bailey, 1 Mo.App. 328, syl. 3; Ridgeway v. Kennedy, 52 Mo. 25 to 26. (14) Defendant's fifth point is not well taken. Chapman v. Dougherty, 57 Mo. 617; Wilson v. Board, 63 Mo. 137; Wilkerson v. Allen, 67 Mo. 502. See three last cases under point 4.

G. A. Madill, G. H. Shields and Lionberger & Shepley for appellant, Chouteau.

(1) The petition does not state a cause of action. First. The letter sued on was a mere proposal, and not a contract. 1 Addison on Contracts, 15; Pollock on Contracts, 42; Bourne v. Shapleigh, 9 Mo.App. 64; White v. Corlies, 46 N.Y. 467; Emerson v. Graff, 29 Pa. St. 358. Second. The petition does not allege that Allen accepted said proposal. Eads v. Carondelet, 42 Mo. 113; Lungstrass v. Ins. Co., 48 Mo. 201; Robinson v. Railroad, 75 Mo. 494-498; Bourne v. Shapleigh, 9 Mo.App. 64; Eleason v. Henshaw, 4 Wheat. 225; Tilley v. Cook Co., 103 U.S. 158; Pollock on Contracts, 31, 32, 42; Kingston v. Phelps, Peake's N. P. 299; Chinnocks v. Marchioness, 4 De G. J. and S. 636; Boyd v. Hind, 25 L. J. R. Exch. 346. Third. The allegation that Allen paid the taxes on the faith of the letter and with the knowledge of Chouteau is not an allegation of what is equivalent to an...

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