Allen v. Chouteau

• Decision Date: 15 December 1890
• Court: Missouri Supreme Court
• Parties: ALLEN <I>et al.</I> v. CHOUTEAU.

14 S.W. 869

102 Mo. 309

ALLEN et al. v. CHOUTEAU.

Supreme Court of Missouri.

December 15, 1890.

CONTRACTS — TO REFUND TAXES PAID — ACCEPTANCE OF PROPOSITION — PLEADING — EVIDENCE — DEPOSITIONS.

1. In an action to recover money paid, by plaintiffs' testator for defendant, the petition alleged that defendant wrote plaintiffs' testator that if he would pay certain taxes he, defendant, would reimburse him if he got title in a foreclosure suit pending between them and others. The petition also stated that testator was influenced to pay the taxes by the letters, and that with the knowledge of defendant he made the payment. Held, that this was a sufficient allegation of acceptance of defendant's offer.

2. Even if there was no allegation of acceptance in the petition, it was cured by the allegation of the answer that testator did not accept the offer, and the denial of this by the reply.

3. The foreclosure suit referred to in defendant's letter was brought by defendant to foreclose a deed of trust given on certain land to secure the payment of certain bonds, in which other persons holding some of the bonds, and plaintiffs' testator who claimed an interest in the lands, were made defendants. Plaintiffs' testator by an amended answer claimed to own part of the bonds, and asked for a foreclosure thereof, and for money paid by him for taxes thereon. In such suit, defendant took and used the deposition of said testator. Held, that in the action by plaintiffs to recover the amount of said taxes alleged to have been paid by testator on the proposition of defendant to reimburse him, plaintiffs were properly allowed to give the deposition in evidence.

4. The deposition of plaintiffs' testator having been introduced by them, defendant was properly allowed to testify in his own behalf, but only as to matters covered by the deposition.

5. The offer made by defendant to plaintiffs' testator was that, if the testator would pay the taxes, defendant would refund to him the amount paid, and interest on such land as defendant should obtain a good title to by the foreclosure litigation then pending. Part of the lands were withdrawn from sale under the foreclosure judgment because they had previously been sold under the terms of the deed of trust. Defendant and the other judgment creditors finding it necessary to buy the lands jointly, he took title under a written agreement to hold the same for the benefit of himself and the other judgment creditors. Held, that defendant's undertaking was to pay the taxes only on his own interest in the lands to which they got title.

6. Defendant's letter containing the proposition to testator, "if you will pay all the taxes now due on the lands," etc., bore date December 6, 1877. Held, that the taxes of 1878 were not due within the meaning of the proposition, as, though the lien thereof related back to August 1, 1877, the assessment was not complete till January 1, 1878, and the taxes were levied in 1878.

7. The letter concluded, "If this is agreed to, the agreement can be fully drawn up and signed." Held, that this did not require a formal written agreement as a condition to the existence of a contract

8. Testator's payment of the taxes without any further agreement was an acceptance of the offer.

BARCLAY, J., dissenting.

Appeal from St. Louis circuit court; JAMES A. SEDDON, Judge.

Leonard Wilcox, for plaintiffs. Geo. A. Madill, Liongerber & Shepley, Geo. H. Shields, and John M. Glover, for defendant.

BLACK, J.

This is an action brought by the executors of Thomas Allen against Charles P. Chouteau to recover over $24,000, because of moneys expended by Allen in the payment of taxes on some 200,000 acres of land in the counties of Scott and Stoddard for the years 1871 to 1878, both inclusive. The cause of action is founded on a letter from Chouteau to Allen. The case was heard by a referee, upon whose report judgment was entered for the plaintiffs for the sum of $20,659, and from which judgment both parties have appealed. As it is insisted by defendant that the proposal made by the letter was never accepted, so as to become a contract, it is necessary to set out much of the evidence. In 1857, the Cairo & Fulton Railroad Company made a deed of trust conveying to trustees a large quantity of lands, including the lands now in question, to secure the payment of 1,600 bonds of $1,000 each, with interest coupons attached. Charles P. Chouteau, the defendant in this case, claiming to own a large number of the bonds, commenced his suit on the 10th December, 1871, in the Mississippi circuit court, to foreclose the deed of trust, making Thomas Allen and some five other parties defendants. Allen was made a defendant on the ground that he claimed to own the lands. The other defendants held some of the bonds secured by the deed of trust. Allen answered by denying the validity of the deed of trust, and by setting up its invalidity, and that he was the owner of the lands in fee. On the 8th June, 1875, the circuit court found that Chouteau was the owner of a note executed by the railroad company for $12,000, and that he held 125 of the bonds to secure its payment, and gave judgment in his favor for $22,000, being the principal and interest due on the note, but gave judgment against him in other respects. From this judgment all the parties to the suit appealed. While these appeals were pending in this court, Chouteau addressed to Allen the following letter, constituting the basis of this action: "St. Louis, December 6th, 1877. Thomas Allen, Esq. — Dear Sir: Your valued favor of the 4th inst., being sent to the office of Chouteau, Harrison & Valle instead of my own, is only this moment received. In reply I beg to say that if you will pay all taxes now due on the lands covered by my suit pending in the supreme court of Missouri, in the case between you, myself, and others, and lying in the counties of Stoddard and Scott, and that I shall obtain a good title to said lands, or any of them, by the present litigation, I will refund to you the amount paid and interest on such lands as I shall obtain a good title to. If this is agreed to, the agreement can be fully drawn up and signed. Very truly yours, CHARLES P. CHOUTEAU." Allen's letter of the "4th inst." appears to have been lost, so that it was not produced on the trial. It does not appear that any agreement was drawn up and signed as suggested in Chouteau's letter; nor does it appear that Allen made any written acceptance. The evidence, however, shows that a stringent tax law had been passed in 1877; that Chouteau and Allen had had some conversations about the payment of these delinquent taxes. Mr. Cooper says he met Chouteau, and told him Allen objected to paying the whole of the taxes, as he, Chouteau, had a claim on the lands; that he cannot tell exactly what Chouteau said, but the substance of it was that if Allen would advance the money he would arrange, or at least refund. We understand this conversation to have occurred before the date of the above letter. After Allen received the letter, he sent for his land agent, Mr. Boughton, and made arrangements for paying the taxes. Boughton says Allen read to him at that time Chouteau's letter of December 6, 1877; and Cooper says he saw the letter in the possession of Allen a day or two after it was written, and read it at the request of Allen. George Allen, a son of Thomas Allen, says he assisted in paying the taxes; that Chouteau was in his father's office between the 6th and 15th December, 1877, to the best of his recollection; and that he saw the letter before his father requested him to pay the taxes. On the 31st December, 1877, Allen, through his agents paid taxes on the lands to the amount of over $7,000, and in 1878 and January, 1879, made additional payment, in all amounting to $24,648.32. This aggregate amount includes $3,409.59 paid in December, 1878, and January, 1879, for the year 1878. Some of the taxes were paid as the result of a favorable compromise with the county court. After all of the foregoing transactions, and on the 10th October, 1879, this court reversed the foreclosure judgment, and ordered the circuit court to enter up a judgment in favor of Chouteau on 125 bonds and attached coupons, and to enter up a judgment in favor of the defendants other than Allen on the bonds held by them. On the 16th April, 1880, the circuit court gave judgment pursuant to the mandate of this court; but in the following May that court allowed Allen to file a second amended answer. In this answer, Allen alleged that he was the owner of 263 of the bonds secured by the deed of trust, and asked a foreclosure to satisfy his bonds. He also alleged that he had paid taxes upon the lands to the amount of $27,000, including the taxes now in question, and he asked to have a lien declared in his favor therefor. In December, 1880, the circuit court gave judgment of foreclosure in favor of Allen on his bonds, and declared a lien in his favor for the taxes. That judgment was reversed, and this court then entered judgment for Chouteau for $300,000, for defendant Seelye for $123,320, for Patterson in the sum of $23,618, and in favor of Reid for $2,330. A commissioner was appointed, who sold the lands, and Chouteau became the purchaser of 156,747 acres in Scott and Stoddard counties, and received a deed therefor dated October 26, 1882. He purchased and holds the lands for himself and the other judgment creditors in the proportions of their respective debts. Some 15,120 acres were withdrawn from that sale by the judgment creditors, and were not sold because they had been before sold under the terms of the deed of trust. The sale of the lands by the commissioner, it may be added, did not pay the foreclosure judgments. On the foregoing, and some other evidence to be hereafter noticed, the referee found that the taxes for 1871 to 1877 had been paid by Allen on the faith of the letter of December 6, 1877; that the payment...