Brecheisen v. Coffey

• Decision Date: 29 January 1884
• Citation: 15 Mo.App. 80
• Parties: WILLIAM BRECHEISEN, Appellant, v. MICHAEL COFFEY, Respondent.
• Court: Missouri Court of Appeals

15 Mo.App. 80

WILLIAM BRECHEISEN, Appellant,

v.MICHAEL COFFEY, Respondent.

St. Louis Court of Appeals, Missouri.

Jan. 29, 1884.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Affirmed.

R. L. BROCKENBROUGH, for the appellant: Where two causes of the same class are united in the same count, as in this case, the defendant can, before answer, by motion to strike out, compel plaintiff to elect on which cause he will stand and strike the other out. This right is waived if defendant answers. On the other hand, there can be no objection if plaintiff does not take advantage of the waiver; and, after answer, voluntarily abandons one cause of action.-- Mooney v. Kennett, 19 Mo. 551; Otis v. Mechanics' Bank, 35 Mo. 128; House v. Lowell, 45 Mo. 381, and authorities there cited; Stephenson v. Judy, 49 Mo. 227.

THEO. H. CULVER, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

The petition alleges that, desiring to purchase a certain tract of land in Kansas from defendant (which is particularly described) plaintiff did, on April 26, 1881, by letter, offer to defendant, who was then the owner thereof, the sum of $3,200 cash therefor, which offer defendant at Canon City, Col., accepted, and then agreed, in consideration that plaintiff would pay to him $3,200 cash, to sell and convey to plaintiff the land in question for that sum. That this promise and agreement of defendant was in writing, and upon the terms and conditions set forth in defendant's letter of acceptance to plaintiff, which is fully set out in the petition as follows:--

“Box 2685, CANON CITY, COL., May 2, 1881.

Wm. Brecheisen, Esq., Eudora, Kan.

DEAR SIR: I have just received yours of April 26, wherein you offer me, for my land, $3,200 in cash, to be paid at sale. In reply, I will say, that I will sell you the property for that sum paid in cash. You will pay all costs connected with the transfer of deeds, etc. On receiving from you a favorable reply, I will forward by express, C. O. D., for $3,200, to you the deeds giving you full and clear title.

Very truly,

MICHAEL COFFEY.”

That, thereupon, plaintiff accepted the counter offer in defendant's letter, and duly notified defendant thereof by letter dated May 9, 1881. That, after said agreement was made by defendant with plaintiff, and before the time for plaintiff to perform its conditions, on his part, plaintiff was reliably informed, and he avers the fact to be, that defendant was negotiating with parties other than plaintiff to sell to them the said land for $3,550, and plaintiff believing said information to be true, yet desiring to prevent a contest at law with defendant, offered defendant, by telegram dated May 16, 1881, to pay him $3,550 for said land. That defendant at St. Louis accepted said offer, and, by writing signed by defendant, agreed with plaintiff to convey to him the said land upon the terms offered in plaintiff's telegram. The telegram of defendant is set out in the petition as follows:--

“ST. LOUIS, Mo., 5-16, 1881.

Other parties don't answer immediately, I will accept $3,550--$2,000 cash, balance in twelve months.

MICHAEL COFFEY.”

That plaintiff, by telegram dated Eudora, Kan., May 17, 1881, accepted the terms of defendant and duly notified him thereof; and, on August 16, 1881, by letter addressed to defendant at St. Louis, Mo., demanded the conveyance of said property to plaintiff, and tendered to defendant $3,550, in pursuance of said agreement, and has always been ready and willing to pay to defendant said sum and perform the conditions of said agreement, but that defendant has failed and refused, etc.

Plaintiff says that said land was worth $4,200; that plaintiff borrowed $2,700 at ten per cent, to enable him to carry out the agreement, and kept the same up to the date of breach by defendant, that is, for four months, and paid $90 for the use of the borrowed money. He asks damages in the sum of $1,090.

The answer was a general denial. The cause was tried by a jury, and there was a verdict and judgment for plaintiff for one thousand dollars and costs. Defendant moved in arrest of judgment, on the ground that the petition states no cause of action, and that the verdict is not responsive to the pleadings. This motion was sustained, and the cause dismissed.

1. It seems to be very clear that unless the second correspondence by telegrams set out in plaintiff's petition effected a binding contract, the petition of plaintiff does not set up facts sufficient to constitute a cause of action, and can not be made to do so by the most liberal construction, and, therefore, that it will not support the verdict. The first contract is alleged merely as matter of inducement, leading up to, and declaring the reasons which induced plaintiff to make, his second offer. Plaintiff replies to the counter proposition of defendant, in a week, and perhaps as soon as it was received; but then, hearing that defendant was negotiating with another person, and fearing to lose the land, he disregards what has been done, and makes a new offer to plaintiff, on May 16th, raising his bid for the land....