Anderson v. Hall

• Decision Date: 05 July 1916
• Docket Number: No. 17640.,17640.
• Citation: 188 S.W. 79
• Parties: ANDERSON v. HALL.
• Court: Missouri Supreme Court

188 S.W. 79

ANDERSON v. HALL.

No. 17640.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Rehearing Denied July 18, 1916.

Appeal from Circuit Court, Jackson County; J. A. Guthrie, Judge.

Action by Alice J. Anderson against Nathan J. Hall. From a judgment entered after sustaining a general demurrer to the plaintiff's evidence, she appeals. Reversed and remanded.

This is an action for damages alleged to have grown out of the violation of a contract for the purchase of real estate. The petition alleges that about the 5th of March, 1910, the plaintiff agreed to sell to defendant, and defendant agreed to purchase, what is known as the Joe Shelby or Anderson farm near Aullville, in Lafayette county, Mo., at the sum of $54,000; that the defendant had refused to carry out his contract, and in consequence plaintiff had suffered damages to the extent of $30,000.

The answer was a general denial, and by agreement of parties a jury was waived, and the case submitted to the court. At the close of plaintiff's case the court sustained a general demurrer to the evidence and entered judgment against the plaintiff, who brings the case here on appeal.

The evidence shows a correspondence between J. H. Lipscomb, agent for plaintiff, and the defendant covering a period from May 10, 1909, to March 5, 1910. Prior to this time the plaintiff had leased the property in question to J. H. Lipscomb for a term of three years, and had also entered into a contract authorizing him to either purchase the property himself within that time, or to sell same at a price of $45 per acre, net to her; the farm consisting of 800 acres. This contract was in force at the time of the correspondence between Lipscomb and defendant and when the alleged contract of purchase was entered, into. The contract provided that in the event of a sale of the property by Lipscomb he should retain as compensation for his services such amount as was realized in excess of $45 per acre.

The record discloses that on May 10, 1909, Lipscomb wrote a letter to defendant, in which he referred to the farm as the "800-acre farm at Aullville," and as being located in Lafayette county, and stating therein that from a conversation with defendant's daughter he was satisfied that she was anxious for defendant to make the purchase. On September 18, 1909, he addressed another letter to defendant, in which the place was referred to as the "800-acre farm in Lafayette county." On September 26, 1909, the defendant wrote a letter to Lipscomb in which he refers to the place as the "Anderson farm" and makes an offer of $54,000 therefor, provided he could get immediate possession, and provided further that payment of $20,000 in cash could be made and the balance in two years with interest at the rate of 5 per cent. On December 15, 1909, Lipscomb wrote defendant, in which the property was again referred to as the "800 acres at Aullville." Other correspondence in which but general reference was made to the property followed these letters until February 11, 1910, when Lipscomb in a letter to defendant offered the place at $56,000, referring to it as the "800-acre farm," and agreeing that, if it were purchased at that price, immediate possession would be given. On February 12, 1910, a letter from Lipscomb to defendant urging him to purchase the property referred to it as the "800-acre farm in Lafayette county." On February 16, 1910, the defendant wrote Lipscomb that, if the parties would come to his former offer of $54,000, he would see if he could raise the money to comply therewith. On February 26, 1910, Lipscomb advised defendant by letter that he would undertake to have the proposition accepted, and inquired as to the manner in which he wanted to make the deferred payments. On March 2, 1910, defendant addressed a letter to R. B. Thornton, who was then acting in conjunction with Lipscomb, in which he referred to the property as the "Joe Shelby farm," and made an offer to purchase same at $54,000, part in cash and part in deferred payments. In this letter he requested a reply by telegram. On March 5th following, Lipscomb, to whom the offer had been communicated by Thornton, wired the defendant as follows: "Proposition to purchase Anderson farm at fifty-four thousand dollars is hereby accepted. Come at once." On the 7th of March, 1910, Thornton addressed a letter to defendant confirming the telegram just mentioned, and making reference to the property as the "Anderson farm." Information of the alleged sale was communicated by Lipscomb to plaintiff, who at that time was the owner of the property, whereupon she wired her congratulations to Lipscomb. On March 19, 1910, the plaintiff addressed a letter to defendant in which she refers to the property as his and advised him that certain parties desire, with his permission, to erect on one of his buildings an electric sign.

Ike H. Noyes, on the part of the plaintiff, testified that the farm formerly owned by Gen. Joe Shelby and on which he resided for a number of years, consisting of 800 acres and adjacent to the original 160 acres of land on which the town of Aullville was located, was known generally in the community and county where located as the "Joe Shelby or Anderson farm," these terms being used interchangeably. He further testified that Gen. Shelby owned a farm in Bates county where he had lived for a number of years prior to his death.

R. A. Roberts testified that this farm, located as above stated, was generally known in that county as the "Joe Shelby farm," and sometimes as the "Anderson farm."

Talbot Simpson likewise testified, and further said that same had been known as the Shelby farm amongst the old settlers for many years, and was still so known to the present time. He further said that Gen. Shelby had owned several farms, one other in Lafayette county near Lexington, and one in Bates county. He further testified, however, that the other farm located in Lafayette county was not to his knowledge known as the Joe Shelby farm, this term being applied to the one near Aullville.

Lipscomb, who was in the real estate business, and who had resided in that community for a long time, testified that this farm was generally spoken of and known as the Joe Shelby or Anderson farm, and had been for a number of years, and was then so known. He further testified that no other farm in that locality was known as either the Joe Shelby or Anderson farm. He stated that on one of defendant's visits he had shown him the farm known as the Joe Shelby or Anderson farm located near Aullville, in Lafayette county, and consisting of 800 acres, and that when the defendant finally refused to accept and pay for the property he assigned as his reason that he had been accustomed to securing money at a rate of 4 per cent. and that he could not then secure same for less than 5 per cent.

The record also discloses that after defendant had refused to carry out the alleged contract Lipscomb himself purchased the property from the plaintiff for $24,000, and that after the institution of this suit he and the plaintiff entered into a contract whereby he was to receive five-sixths of such damages that might be recovered by plaintiff in this action.

The plaintiff also testified that the farm which she owned, consisting of 800 acres, and located near Aullville, in Lafayette county, Mo., had been given her by her husband, who had acquired same from Gen. Joe Shelby, and that the place was generally known as the Joe Shelby or Anderson place. The plaintiff offered to show that no difficulty would be experienced in locating and identifying the farm when same was referred to merely as the Joe Shelby farm, but this was rejected.

Various witnesses testified that the market value of this property ranged from $30 to $40 per acre.

Joseph S. Rust, of Kansas City, for appellant. Ben T. Hardin and Otto...