Green v. Cole
Decision Date | 19 March 1895 |
Citation | 30 S.W. 135,127 Mo. 587 |
Parties | Green et al. v. Cole, Appellant |
Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.
Reversed and remanded.
L. H Waters and Elijah Robinson for appellant.
(1) Plaintiffs were permitted to recover upon an alleged agreement on which they had not sued, and on which no action could be maintained by them. (2) No agreement between the parties was ever consummated. It was to have been reduced to writing and signed by the parties, which was never done. Nothing was ever done in pursuance of any contract or agreement between the parties. (3) There was no contract. The minds of the parties never "assented to the same thing in the same sense." 1 Addison on Cont. [Morgan's Ed.], p. 37. (4) The alleged contract (if ever made) was a contract of agency, and revocable at the pleasure of the defendant. Story on Agency, sec. 462, p. 579; 1 Parsons on Contracts, 69; Coffin v. Landis, 46 Pa. St. 426; Brown v. Poor, 38 Cal. 550; Gaty v. Foster, 18 Mo.App. 639; Gilbert v. Holmes, 69 Ill. 184. (6) A power not engrafted on an interest in the property is revocable. Hunt v. Rausmanier's Adm'r, 8 Wheat. 174; Blackstone v. Buttermore, 53 Pa. St 266. (7) The plaintiffs acquired no interest in defendant's land by the alleged contract, and it follows that any agency created thereby was revocable. Green v Cole, 103 Mo. 70. (8) A sale by defendant of the land in question was a revocation of any agency concerning it. Story on Agency, secs. 475, 476, p. 587; Bissell v. Terry, 69 Ill. 184. (9) The court erred in giving plaintiffs' first and second instructions. State ex rel. v. Walker, 88 Mo. 279; Walker v. Dennison, 86 Ills. 142; Green v. Cole, 103 Mo. 78. (10) The court erred in refusing defendant's first, fifth, sixth and seventh instructions. The plaintiff, T. J. Green, swears that he prepared the memorandum read in evidence, and handed it to the defendant, and that defendant accepted it. If that be true, plaintiffs are not entitled to recover. The sixth instruction as to the measure of damages should have been given. Under the evidence they were only entitled to nominal damages, if anything. (11) The alleged agreement set out in plaintiffs' petition is within the statute of frauds. (12) The instructions are conflicting. (13) The damages are excessive.
Gates & Wallace and C. O. Tichenor for respondents.
(1) The plaintiffs recovered on the agreement alleged in their petition, and the agreement was fully proven by the greater weight of the testimony. (2) As to whether there was such a contract entered into between plaintiffs and defendant is a question of fact. (3) Even if the pencil memorandum, which was not signed by either party, differed in any particular from the contract alleged in the petition (we no not admit that it does when considered in connection with all the evidence touching the agreement), yet it can not be pretended that there was "an entire failure of proof of the cause of action, not in some particular, or particulars only, but in its entire scope and meaning," and there having been no objections or exceptions made on the ground of variance and no affidavit filed, as required by the statute, it now comes too late, even if there was any foundation for it. R. S. 1889, secs. 2096, 2097, and 2238. Fischer v. Max, 49 Mo. 404; Brown v. Railroad, 50 Mo. 461; Turner v. Railroad, 51 Mo. 501; Clements v. Maloney, 55 Mo. 352; Wells v. Sharp, 57 Mo. 56; Ely v. Porter, 58 Mo. 158; Bennett v. McCanse, 65 Mo. 194; Meyers v. Chambers, 68 Mo. 626; Ferris v. Thaw, 72 Mo. 446. (4) Even if it was the intention of the parties to reduce the contract to writing, yet if they proceeded to act on it as a valid, existing contract, then it is immaterial whether the contract was reduced to writing or not. Green v. Cole, 103 Mo. 76, and authorities there cited. (5) Although the defendant had the power to rescind the contract (which he did by selling the land) still he did not have the right to do so, and must indemnify the plaintiff for the breach of the contract. Green v. Cole, 103 Mo. 70; Mechem on Agency, sec. 209, p. 136, and sections 620 to 624 inclusive, pp. 447 to 454, and the authorities cited under points 6 and 8. (6) The contract in the case at bar could not be rescinded by the defendant without his being liable to the plaintiffs in an action for damages. The services rendered by T. J. Green under the contract at defendant's request were a valuable consideration, the contract was partly performed and by the terms of the contract it was (if necessary) to continue for a certain time, viz.: Plaintiff was to have two years in which to perform his part of it. Story on Agency [9 Ed.], sec. 446, p. 582; Gales v. Leckie, 2 Starke, 107; Lewis v. Ins. Co., 61 Mo. 534; Wiggins Ferry Co. v. Railroad, 73 Mo. 420; Pond v. Wyman, 15 Mo. 175; Nearns v. Harbert, 25 Mo. 352; Park v. Kitchen, 1 Mo.App. 357; Little v. Mercer, 9 Mo. 218; Wood v. Stephens, 46 Mo. 555; Nesbitt v. Hilser, 49 Mo. 385; Emmons v. Elderton, 76 Eng. Com. L. 495; Black v. Woodrow, 39 Md. 194. That this service was a valuable consideration, see Halsa v. Halsa, 8 Mo. 303; Hudson v. Busby, 48 Mo. 35; U. S. v. Linn, 15 Pet. (U.S.) 290. (7) The first declaration of law given at request of plaintiffs is correct. It was fully warranted by the pleadings and the evidence. (8) The second declaration of law given for plaintiffs is correct. The proper measure of damages is the profits which plaintiffs would have made if they had been allowed to carry out the contract on their part. It is not a case of speculative or remote profits, because here the probable profits were not only within the contemplation of the parties, but were the very gist and object of the contract. Durkee v. Gunn, 41 Kan. 496; Hawley v. Smith, 45 Ind. 183; Pond v. Wyman, 15 Mo. 175; Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Lewis v. Ins. Co., 61 Mo. 534; Mfg. Co. v. Mfg. Co., 100 Mo. 325; Lumber Co. v. Warner, 93 Mo. 374; Nearns v. Harbert, 25 Mo. 352; Gales v. Leckie, 2 Starkie, 107; Park v. Kitchen, 1 Mo.App. 357; Dobbins v. Emmons, 18 Mo.App. 316; Kingland v. Iron Co., 29 Mo.App. 540; Goldman v. Wolf, 6 Mo.App. 490. (9) The damages were not excessive; on the contrary they were very moderate. Defendant sold the land for $ 50,000, all of which was paid to him. The uncontradicted evidence on the part of the plaintiffs showed that within the two years from the date of the contract the land could have been sold by them for from $ 84,000 to $ 110,000. (10) On the whole case the judgment was for the right party, and should be affirmed.
OPINION
In Banc.
A former appeal in this case is reported in 103 Mo. 70. The case was retried without change in the pleadings. A jury was waived, and there was a finding and judgment in favor of plaintiffs for $ 9,970. Defendant again appealed.
I. The suit is to recover damages for the breach of a contract under the terms of which it is alleged that defendant employed plaintiffs to sell for him a tract of seventeen acres of land in Kansas City. The petition charged the contract to have been in the following terms:
"The plaintiffs were to have said real estate surveyed and replatted in small tracts or lots, put into a condition to sell, to take charge of the sale thereof, and to sell the said real estate as the same should be replatted; that out of the proceeds of said sale or sales there were to be paid, first, the necessary expenses attending said survey, replatting and putting of said ground into condition for sale; then, next, there was to be paid to said defendant the sum of $ 30,000 and interest on $ 15,000 thereof, at the rate of eight per cent. per annum from the date aforesaid until said $ 30,000 should be paid; then, the balance of the proceeds arising from said sale was to be equally divided between the plaintiffs and the defendant."
T. J. Green, one of the plaintiffs, testified in chief as follows:
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