Collins v. Hoover

• Citation: 218 S.W. 940,205 Mo.App. 93
• Parties: W. M. COLLINS, et al., a Co-partnership, Under the Firm Name of COLLINS & COLLINS, Respondents, v. THOMAS J. HOOVER, Appellant
• Decision Date: 28 February 1920
• Court: Court of Appeal of Missouri (US)

218 S.W. 940

205 Mo.App. 93

W. M. COLLINS, et al., a Co-partnership, Under the Firm Name of COLLINS & COLLINS, Respondents, v. THOMAS J. HOOVER, Appellant

Court of Appeals of Missouri, Springfield

February 28, 1920

Appeal from Circuit Court of Pemiscot County.--Hon. Sterling H McCarty, Judge.

REVERSED.

Judgment reversed.

Ward & Reeves for appellant.

(1) The plaintiff never at any time produced a purchaser ready willing, and able to buy the land upon the terms and conditions authorized by the defendant, as above pointed out and the trial court should therefore have instructed the jury to return a verdict for the defendant. Harwood v. Triplett, 34 Mo.App. 273; Young v. Ruhwedel, 119 Mo.App. 231; McCormick v. Obanion, 168 Mo. 614; Gelatt v. Ridge, 117 Mo. 553. (2) "A presumption must be based upon a fact and not upon inference or upon another presumption." Hays v. Hogan, 273 Mo. 25; Yarnell v. Railroad, 113 Mo. 570; State v. Lacland, 136 Mo. 26; Bigelow v. Metropolitan St. Ry., 48 Mo.App. 367; Glick v. Railroad, 57 Mo.App. 97.

BRADLEY, J. Farrington, J., concurs. Sturgis, P. J., concurs in result.

OPINION

BRADLEY, J.

This is a suit to recover a commission alleged to be due plaintiffs for finding a purchaser able, ready and willing to buy defendant's land. The cause was tried to a jury, and plaintiffs obtained a judgment for $ 500 and defendant appealed.

Plaintiffs allege that on or about January 31, 1918, defendant listed with and authorized them to sell his farm in Pemiscot county for the price and sum of $ 85 per acre net to him, the purchaser to assume a certain mortgage, and pay balance in cash. That on or about May 2, 1918, plaintiffs sold said land to one Rhein who was able, ready and willing to buy at $ 95 per acre leaving to plaintiffs a commission of $ 1339.25. That defendant refused to convey to Rhein, and refused to pay plaintiffs their commission for which they ask judgment. The answer is rather lengthy, and it is sufficient to say that defendant denied that plaintiffs had any authority to sell his land.

Whatever the relation between the parties hereto, it arose from correspondence. On January 22, 1918, defendant wrote plaintiffs as follows:

"Springfield, Illinois,

January 22nd, 1918.

Friend Collins: As I have not heard from you for some time, thought I would drop you a line and inquire whether or not there is much land changing hands at the present time. As I have a proposition, which I would like to take up. I would like to sell my farm down there, which I purchased of you. I mean business, and wish you would get busy and see what the best offer you can get for it. Land in this locality has been selling fine this season, but at the present time there is very little for sale at any price. I have not placed this in anyone's hands, and have made no effort to sell it myself, and would be pleased to hear from you at your earliest convenience."

To this letter plaintiffs on January 26th replied:

"Mr. T. J. Hoover, Springfield, Ill., Dear Mr. Hoover: We have your letter and note that you want to sell your farm in this county. We will be glad to undertake the sale of it if you price it so we think it will move. We have been selling quite a lot of land this past fall and have some good prospects for future sales. The road by your place has never been graded so as to furnish any drainage for your land and the crops along the road did not show up very good, but if you want to sell with the view of undertaking something else you should know about how to price this land to make it move quickly. We believe we can sell it at a quick sale so as to make it net you $ 80 an acre, and if the land should sell now the purchaser will pay this year's taxes and get this years' rent, but if it should sell after the first of June then you will receive this year's rent and pay this year's taxes. Purchaser will assume the loan on the land and pay you balance in cash. Write us if this proposition will suit you and if not write us just what you want us to do in regard to the sale, setting forth all the terms and conditions you will accept."

To this last mentioned letter defendant replied:

"Springfield, Illinois,

January 31st, 1918.

Friend Collins: Yours of the 26th received, and in answer I will say that land here is selling as high as $ 250 an acre that does not produce any more than mine, and it looks like mine would be a bargain at $ 100 per acre, for a quick sale I am willing to make a sacrifice, and will take $ 85 an acre net to me, purchaser to receive rents for 1918 and pay taxes for 1918, and to assume the loan on the land and pay me balance in cash. Please let me hear from you at once, will tie up the other proposition as soon as I am sure this place is under contract to be sold."

The next communication that defendant acknowledges receiving was a telegram from plaintiffs dated at Caruthersville on May 1st, advising that the farm was conditionally sold. To this telegram defendant immediately replied by letter as follows:

"Springfield, Illinois,

May 2, 1918.

Friend Collins: Your telegram just received and in answer will say, if you will refer to my letter of January 31, 1918, you will see that I made you the offer of $ 85 per acre for quick sale, and in the last paragraph I asked you to let me hear from you at your earliest convenience, so I could tie up the other proposition as soon as I was sure that my place was under contract to be sold. (See copy of letter enclosed.) Not hearing from you for about three months. I supposed you did not care to accept my proposition, so a short time ago I contracted it to a party in this city, and received payment on it. Sorry you did not see fit to answer my letter, so as to take advantage of my proposition."

Before defendant's letter last mentioned reached Caruthersville plaintiff Collins left for Springfield, Ill. and on May 3rd called on defendant and presented for his signature the contract made with Rhein, and also a warranty deed for execution. Defendant refused to sign or recognize the contract plaintiff made with Rhein for the sale of the land because, among other things, he claimed that he had no answer to his letter of January 31st, and that plaintiffs, therefore, had no contract with him, and no authority to sell his land. And not having heard from plaintiffs in reply to his letter of January 31, he, himself, had sold the land on April 22nd. Plaintiffs claimed that they answered defendant's letter of January 31st. If they did not reply to this letter and accept the employment as therein provided then there was no contract, and plaintiffs cannot recover. We might say here in passing that plaintiffs have not briefed their cause here. A respondent is not required to brief his cause here, but we do not commend the practice of a party resting on his oars after he has successfully passed the trial court. It is common knowledge that in the stress of trial the trial court however learned, must of necessity, pass upon questions "right off the bat," a common and well understood expression, and a litigant who is the beneficiary of the trial court's judgment should be as diligent to sustain that judgment as he was to obtain it.

Defendant makes many assignments of error, but in our opinion one is decisive, and it is not necessary to discuss and determine others. The correctness of the admission in evidence of the copy of the letter is the assignment we think decisive. Defendant's contention that plaintiffs had no contract of any character to sell his lands depends upon the proper mailing of the letter which plaintiffs claim they wrote to defendant on February 3rd, in answer to defendant's letter of January 31st. Plaintiffs, over defendant's objection and exception, succeeded in getting into the record and before the jury a copy of the disputed letter, which is as follows: "Feb. 3, 1918. Mr. T. J. Hoover, Springfield, Ill., Yours of the thirty-first received and contents noted. The price is high enough, but if the spring opens up good we think we can sell it for you at the price of $ 85 per acre net to you. Trusting this will find you all O. K., we remain, Yours truly."

Defendant denied receiving this letter, and there is no circumstances tending to show that he did receive it. If plaintiffs wrote the letter, properly addressed stamped and mailed it, then the presumption would be that defendant received it. Plaintiffs had to prove that they accepted defendant's offer to permit them to sell his farm, and they undertook to make this proof by showing that they had accepted by letter, and to do this in the absence of proof that defendant received the letter plaintiffs were required to prove that the letter was written and...