Collins v. Hoover
Decision Date | 28 February 1920 |
Docket Number | No. 2476.,2476. |
Citation | 218 S.W. 940,205 Mo. App. 93 |
Parties | COLLINS et al. v. HOOVER. |
Court | Missouri Court of Appeals |
Appeal from Circuit Court, Pemiscot County; Sterling II. McCarty, Judge.
Action by W. M. Collins and another, a copartnership under the firm name of Collins & Collins, against Thomas J. Hoover. Judgment for the plaintiffs, and defendant appeals. Reversed.
Ward & Reeves, of Caruthersville, for appellant.
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 $1,339.25; 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:
To this letter plaintiffs on January 26th replied:
To this last mentioned letter defendant replied:
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:
Before defendant's letter last mentioned reached Caruthersville plaintiff Collins left for Springfield, Ill., and on May 3d 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 31st, he himself had sold the land on April 22d. 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 necesssary 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 3d 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:
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