Botkin v. McIntyre

• Decision Date: 30 April 1884
• Citation: 81 Mo. 557
• Parties: BOTKIN, Appellant, v. MCINTYRE.
• Court: Missouri Supreme Court

81 Mo. 557

BOTKIN, Appellant,

v.MCINTYRE.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Audrain Circuit Court.--HON. ELIJAH ROBINSON, Judge.

AFFIRMED.

George Robertson for appellant.

Respondent proposed to exchange hay. Appellant did not assent. The essentials of a contract are: 1st, Parties; 2nd, Consideration; 3rd, Assent of parties; 4th, The subject matter. Without these four essentials there can be no contract. 1 Parsons on Cont., (5 Ed.) p. 8. There was no assent of parties, hence no contract. “Agreement requires for its creation, at least, two parties.” The parties must have a distinct intention, and that intention must be common to both. When there is doubt or difference, there can be no agreement. Anson on Cont., (1 Ed.) p. 2. “In the case of contracts which are made by the acts of the parties, and not by proposal and acceptance in words, it would appear that silence must give consent; but then it must be silence coupled with some overt act of acquiescence.” Anson on Cont., (1 Ed.) p. 16. There was no overt act of acquiescence on the part of plaintiff and the fifth instruction asked by him should have been given.

F. M. Brown for respondent.

Where the court tries the case without a jury, this court will look to the facts found, and if they warrant the judgment it will be affirmed, without regard to the instructions given or refused. Robinson v. Rice, 20 Mo. 229, 236. The third instruction was embraced in the second given and it was not error to refuse it. Martin v. Smylee, 55 Mo. 577; State v. Miller, 67 Mo. 604. Plaintiff did assent to defendant's proposal to exchange stacks of hay. He made no reply, was silent. “So, also, the silence of either party will import assent to the terms of the contract, whenever it would have been incumbent on him to express his dissent, if he did not agree thereto; or when his silence is explicable only by the presumption of his assent. But whether the facts of the case indicate a mutual agreement, is for the jury to determine.” Story on Cont., § 379; Hubbard v. Coolige, 1 Met. 93; Thurston v. Thornton, 1 Cush. 89. “If a party by his silence directly leads another to act to his injury, he will not be permitted, after injury has happened, to then allege anything to the contrary, for he, who will not speak when he should, will not be allowed to speak when he would.” Pelkington v. Ins. Co., 55 Mo. 172, 178. His silence was an admission that he had no objection, and such silence may have the same contractual force and bind as effectually as words of assent. Wharton Law of Cont., § 6. If the plaintiff caused or did not prevent a false impression when he might have done so, and the defendant acted on the honest belief that plaintiff did consent, then plaintiff is estopped to assert anything now to the injury or prejudice of the defendant in respect to that matter. 2 Parsons on Cont., (5 Ed.), p. 793; Freeman v. Cooke, Exch. (Welby H. & Gordon) 654; Chouteau v. Goddin, 39 Mo. 229; Bales v. Perry, 51 Mo. 449; Spurlock v. Sproule, 72 Mo. 503.

EWING, C.

This suit was commenced before a justice of the peace to recover the value of one stack of hay, alleged to have been used by the defendant without authority, and for damage to certain other hay of plaintiff by the defendant's stock. Verdict and judgment for defendant, from which plaintiff appealed to the circuit court, where, upon a trial de novo, the result was again in favor of the defendant, and the plaintiff brings the case here by appeal.

It appears that in September, 1879, the respondent sold the appellant a lot of hay then standing on respondent's farm in Audrain county. At the time of the sale the respondent had other hay standing in the same meadow, and he also had some stock, a few head of cattle and horses, running in the meadow and being allowed to remain there for some time they ate around the bottom parts of the stacks and consumed some portion of such as they chose to go to. The respondent went to the appellant and told him that with his (appellant's) consent he would use two of the stacks in the north meadow because they had been injured by the stock, and leave appellant two other stacks in the south meadow. Appellant made no reply and respondent used one of the stacks. The plaintiff then sued for the stack of hay so taken, and for damage to the others. The evidence tended to show that the defendant, when he sold the hay to plaintiff agreed to remove his stock from the meadow, as soon as he could sell it, but that the stock must run in the meadow until that time.

Upon the other branch of the case, the evidence tended to show that defendant went to plaintiff and told him that the stock had damaged the hay in the north...