Curtis v. Sexton
| Decision Date | 24 January 1910 |
| Parties | W. E. CURTIS, Respondent, v. SAMUEL E. SEXTON, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 142 Mo.App. 179 at 191.
Appeal from Jackson Circuit Court.--Hon. Thomas J. Seehorn, Judge.
Judgment reversed.
A. F Evans for appellant.
(1) There is an important distinction between a perfected contract and an option contract. Hollman v. Conlan, 143 Mo. 369. Parties cannot lie by and speculate on their own contracts. Brown's Ex. v. Massy, 138 Mo. 519; Durrett v. Hook, 8 Mo. 374; Waterman v Banks, 144 U.S. 394; Armour v. Cason, 95 Mo.App. 426. (2) If the contract does not fix the time for performance the law implies a reasonable time. Blake Mfg Co. v. Gaeger, 81 Mo.App. 239; Bryant v. Saling, 4 Mo. 522. To make a valid contract the parties must assent to the same thing in the same sense. Perkins v. School District, 99 Mo.App. 483; Cockrell v. Bopp, 106 Mo.App. 355. (3) An acceptance of an option must in every respect meet and correspond with the offer, neither falling within, nor going beyond the terms proposed, but exactly meeting them at all points and closing them just as they stand. Potts v. Whitehead, 23 N.J.Eq. 516; Henry v. Black, 213 Pa. 620; Glass v. Rowe, 103 Mo. 513; Stembridge v. Stembridge, 87 Ky. 91; Potts v. Whitehead, 20 N.J. E. 55; Tilton v. Sterling, etc., Co., 28 Utah 173; Egger v. Nesbitt, 122 Mo. 667; Brunner v. Wheaton, 46 Mo. 363. (4) If the option agreement ever became mutual and binding, the defendant and Bracking became interested in the land as tenants in common, and the contract could have been specifically enforced. R. S. 1889, sec. 8844; R. S. 1899, sec. 4600; Real Estate Co. v. Spelbrink, 211 Mo. 671. (5) A deed to former partners, made after dissolution of the partnership, will make them tenants in common. Allen v. Logan, 96 Mo. 591. (6) One tenant in common cannot dedicate the property to public use, grant an easement, or bind the other without his consent, so as to affect his rights. St. Louis v. Gas Light Co., 96 Mo. 197; Nalle v. Thompson, 173 Mo. 595. (7) If the option agreement had not already been accepted, according to its terms, then no contract existed, and neither plaintiff's nor defendant's rights were in anywise affected by Bracking's letters. Tilton v. Sterling C. & C. Co., 28 Utah 173. (8) Mere refusal by one party to a contract, before performance is due, will not obviate the necessity of tender by the other party. Matterson v. U. S. & C. L. Co., 103 Minn. 407; Abbott's Trial Evidence (2 Ed.), 921; Tilton v. Sterling C. & C. Co., 28 U. 173. (9) One partner cannot bind another on matters not connected with the partnership business. Rimel v. Hayes, 83 Mo. 200; Huyssen v. Lawson, 90 Mo.App. 82. (10) No admission or declaration made by a partner, after dissolution of the partnership, and notice thereof, is competent evidence against a copartner, although relating to a contract which arises during the partnership. Abbott's Trial Evidence (2 Ed.), p. 271; Flowers v. Heim, 29 Mo. 324; Brady's Admr's v. Hill, 1 Mo. 315. Little v. Ferguson, 11 Mo. 598; Evangelical Synod of North America v. Schoeneich, 143 Mo. 652; Pope & West v. Risley, 23 Mo. 185. (11) After evidence of partnership, and that it included the affair in question, has been given, an admission or declaration made by one partner during continuance of partnership relations, and concerning the partnership affairs during the relation, is competent against all, and has the same effect as if made by all. Abbott's Trial Evidence (2 Ed.), p. 269; Katy v. Kyle, 47 Mo. 346; Am. Iron Mt. Co. v. Evans, 27 Mo. 552. (12) In all respects other than for a collection of debts and disposal of assets, the agency of partners for each other terminates with dissolution. Abbott's Trial Evidence (2 Ed.), p. 271.
Robert F. Porter for respondent.
(1) Where one of the parties declares his inability to fulfill his contract, a tender to him is unnecessary. Comstock v. Lager, 78 Mo.App. 390; 28 Enc. Law 9 (Tender); Clark v. Weis, 87 Ill. 438; Land Co. v. Baylor, 71 Mo.App. 99; McManis v. Gregory, 16 Mo.App. 382; Schilb v. Pendleton, 76 Mo.App. 454; Whelen v. Reilly, 61 Mo. 565; Mastin v. Grimes, 88 Mo. 489; Girard v. St. Louis, 123 Mo. 371; Blanton v. Kentucky Dis. Co., 120 F. Rep. 318; Dichman v. Dichman, 49 Mo. 107; Bucklen v. Hasterlick (citing Dichman), 134 U.S. 81. (2) The dissolution of a partnership does not change the rights and obligations of the members under existing contracts. Bryant v. Hawkins, 47 Mo. 410; Abbott, Trial Practice, 272; 1 Bates on Partnership, sec. 707; Cady v. Shepherd, 11 Pick. 400; Bank v. Henschen, 52 Mo. 207; Bank v. Altheimer, 91 Mo. 191. (3) Admissions by one partner are binding on another even after dissolution. Payment by one will toll the statute of limitations as to the other. Maddox v. Duncan, 143 Mo. 621; Vernon County v. Stewart, 64 Mo. 408. The rule applies as to other admissions. Schierbaum v. Schemme, 157 Mo. 21; 1 Greenl. on Evid. (15 Ed.), sec. 174; Whitcomb v. Whiting, 2 Douglass 652; St. L., etc., Co. v. Fowler, 142 Mo. 676; Kelsey v. Bank, 166 Mo. 171. (4) A tender to one joint obligor is a tender to all. Warder v. Ardell, 2 Wash. (Va.) 282; Oatman v. Walker, 33 Me. 67; Clark v. Patton, 4 J. J. Marsh (Ky.) 33; Carman v. Pultz, 21 N.Y. 547; Dawson v. Ewing, 16 Sarg. & R. 371; Henry v. Mount Pleasant, etc., 70 Mo. 504; Bartal v. Eckert, 50 Ohio St. 32; Dellor v. Holland, 57 Ohio St. 507; Green v. Rick, 121 Pa. 139; McCling v. Howard, 45 Mo. 365; Wetmore v. Couch, 150 Mo. 682.
Defendant and his partner Bracking executed a written contract to plaintiff, in their partnership name, agreeing to purchase a one-sixteenth interest in certain lands owned by plaintiff in Kansas City, Missouri, at a certain date, if plaintiff desired them to do so. Plaintiff, claiming a breach of the contract, brought this action for damages against defendant alone. He recovered judgment in the circuit court. The contract reads as follows:
Plaintiff lived in Cincinnati, Ohio. He alleges in his petition that he performed all his part of the contract; that he had paid defendant and Bracking, his partner, for the property an aggregate sum of $ 2878.37. He further alleges that prior to the 6th of October, 1890, the date he was to elect whether he would sell the land back to defendant and Bracking, he notified them that he desired to sell and that he requested them to send to him such form of deed as they desired him to execute. That they refused to furnish such form and made known to him that they would refuse to purchase back. He further alleges that on the day he was to elect (the 6th of October, 1890) and at different times afterwards, he notified them that he desired them to purchase the land, and they refused to do so. He then alleges that as defendant and Bracking refused to make out a proper deed and send to him, he, on the 29th of November, 1890, executed a deed to them and tendered it to each of them, and demanded of each of them the money he had paid for the land, and interest up to the 6th of October, 1890, the day he was to elect; but they each refused the deed and refused to pay him the money demanded. It was then further alleged that there was a prior mortgage or deed of trust on the land and that since the foregoing the property had been sold under such incumbrance to third parties.
The trial, from the result of which the present appeal was taken, was the second. At the first trial only the evidence for plaintiff was heard when the trial court sustained a demurrer thereto and rendered judgment for defendant, and plaintiff appealed to the Supreme Court where that judgment was reversed and the cause remanded. The present appeal was taken to the Supreme Court and was transferred to this court by reason of the jurisdiction of this court having been increased to a sum more than that here involved. The case on the first appeal will be found reported in 201 Mo. 217. Its full history, with much of detail included in its statement, is quite lengthy and much involved. We refer to that report where will be found much information as to the controversy clearly stated and put into a short space. On that appeal, as already said, only the evidence for plaintiff had been heard and the Supreme Court, of course, could only treat it from that standpoint. One of the principal points made at the last trial, and on this appeal, was not considered by the Supreme Court, because of the essential and important difference in the evidence at the two hearings; that is, the matter of election of plaintiff to sell back and of his tender of a deed.
Coming to the evidence to sustain the allegations of the petition as stated above: we find that plaintiff was in the State of Ohio and defendant in Kansas City, Missouri, and that Bracking at the time of the correspondence to be referred to was a travelling salesman from Cincinnati and that the matter of election in pursuance of his option to sell and the matter of tender prior to October 6, 1890, were all made by letters. The letters plaintiff wrote to either Bracking or defendant were not produced, defendant stating he had not received any. But plaintiff had preserved what he calls memoranda copies some blanks appearing. The first one to defendant is dated the 13th of September, 1890, and...
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