Egger v. Nesbitt

• Citation: 27 S.W. 385,122 Mo. 667
• Parties: Egger, Appellant, v. Nesbitt
• Decision Date: 12 June 1894
• Court: Missouri Supreme Court

27 S.W. 385

122 Mo. 667

Egger, Appellant, v. Nesbitt

Supreme Court of Missouri, Second Division

June 12, 1894

Appeal from St. Clair Circuit Court.

Affirmed.

G. A Neal and Cole & Ditty for appellant.

(1) A good and sufficient contract for the conveyance of real estate may be made by letters and telegrams. Bishop on Contracts, sec. 328; Greely-Burnham Co. v. Capen, 23 Mo.App. 301; Whaley v. Hinchman, 22 Mo.App. 483; Sohn v. Jarvis, 101 Ind. 578. (2) Depositing a written acceptance of an offer to sell in the United States mail, with postage prepaid, properly addressed to the party making the offer, prior to the withdrawal of the offer itself, is a sufficient acceptance and completes the contract. Lancaster v. Elliott, 42 Mo.App. 503; Tayloe v. Ins. Co., 9 How. 390; Stotesburg v Massengale, 13 Mo.App. 231. (3) Full performance of the consideration of an offer, before the offer is withdrawn constitutes an acceptance of the offer. Assent and notice need not be formally expressed; they may be given and communicated by conduct as well as by word. Allen v. Chouteau, 102 Mo. 309; 2 Coke on Littleton [Thomas' Ed.], sec. 325, and note; 2 Blackstone's Com., 428; Rapalje's Law Dictionary, title "Muminents;" Bouvier's Law Dictionary, title, "Mumiments;" Cooper v. Ramsbottom, 6 Taunt. 14; 27 Wis. 671; Bruner v. Wheaton, 46 Mo. 367; Benj. on Sales [6 Am. Ed.], secs. 42, 44; Washburn v. Fletcher, 42 Wis. 152; Judd v. Day, 50 Iowa 247. (4) Assent will not be nugatory because of an immaterial addition. If the assent merely expresses what the law would imply, the contract is binding, and so if to the assent is added a mere hope or wish. 1 Benj. on Sales [6 Am. Ed.], p. 55; Clark v. Dales, 20 Barb. 42; Phillips v. Moore, 71 Me. 78; Matteson v. Scofield, 27 Wis. 671; Fitzhue v. Jones, 6 Munf. 83; Brisban v. Boyd, 4 Paige, 17; O'Neal v. James, 43 N.Y. 84. (5) Assent may be indicated in various ways. Botkin v. McIntire, 81 Mo. 557. (6) It is not essential to the validity of a contract that it should stipulate any time or place of delivery. Smith v. Schell, 82 Mo. 218; Story on Sales, p. 270. (7) A demurrer to the evidence admits everything which the testimony conduces to prove, even though only in a slight degree. Wilson v. Board of Education, 63 Mo. 137; Buesching v. Gaslight Co., 73 Mo. 219; Brink v. Railroad, 17 Mo.App. 177; Heriman v. Railroad, 27 Mo.App. 435.

Johnson & Lucas for respondent.

(1) There is no contract unless the parties thereto assent; and they must assent to the same thing in the same sense. Eads v. Carondelet, 42 Mo. 113; 1 Parsons on Contracts, 475. (2) A binding contract can only occur when the offer made is met by an acceptance which corresponds with the offer made in every particular. Robinson v. Railroad, 75 Mo. 498. (3) In order that an acceptance may be operative, it must be unequivocal, unconditional and without variance of any sort between it and the proposal, and it must be communicated to the other party without unreasonable delay. Bruner v. Wheaton, 46 Mo. 366; Wire Mfg. Co. v. Broderick, 12 Mo.App. 384; Cangas v. Mfg. Co., 37 Mo.App. 307. (4) The failure to accept was a rejection of the offer. If the acceptance in any material way, differs from the original proposition, it amounts to a rejection of the offer. Cangas v. Mfg. Co., 37 Mo.App. 307, and cases cited by the court in the opinion; Strange v. Crowley, 91 Mo. 295. (5) The appellant having rejected the offer of the respondent, by his letter of March 5, the offer was at an end, and could not be renewed by the subsequent acceptance by appellant. See note, Maclay v. Harvey, 32 Am. Rep. 40-53. (6) The trial court found for respondent, and its finding ought not to be disturbed. The onus of establishing a contract by clear and satisfactory evidence was on appellant. And unless this is done a court of equity will not decree specific performance. Taylor v. Williams, 45 Mo. 80; Strange v. Crowley, 91 Mo. 294.

OPINION

Burgess, J.

This is an action for specific performance of a contract of sale, by defendant to plaintiff, of eighty acres of land, to wit: east half of the northeast quarter of section 36, in township 38, range 28, in St. Clair county, Missouri. Plaintiff bought the land at a sale of it for taxes, and subsequently sold it to one Larkins, who took possession of and improved it.

The petition avers that defendant owns the patent title to the land, which he for and in consideration of the sum of $ 400 to be paid to him by plaintiff agreed and promised in writing to convey to him, plaintiff, and that he is ready and willing to pay said purchase money, here offers to do so and prays that defendant be required to comply with the terms of his contract and for all proper relief. The answer is a general denial. Defendant had acquired the patent title to the land and plaintiff began negotiating with him for its purchase, and wrote to him in regard to the matter. To this letter defendant replied from Washington City, where he then resided, as follows:

"Washington, D. C., Feb. 26, 1890.

"F. Egger, Esq., Appleton City, Mo.

"Dear Sir: -- Your letter of December 30 was addressed to me at Osceola, Missouri, and, although I was in Osceola about that time, I received all my mail at Lowry City, and the letter laid at Osceola for some time, and when forwarded to me here went wrong in some way, and I only received it a short time ago.

"Your letter was a very kind one under the circumstances, and I will try to act in the same spirit; and although we are some what apart in our views of this matter, I hope we can adjust it now and in good feeling. When I first purchased these titles I assure you that I did not know that it would in any way bring me in conflict with you or your interests, as I told you that Mr. Larkin owned the other claim, and I did not know who he got it from. I bought the title from all the heirs and paid in cash to them $ 200, and to agents, attorneys and for recording, etc., about $ 60 or $ 70, more; this at ten per cent. interest would amount to about $ 400 at this time.

"I am willing to make a Q. C. deed either to you or to Larkin, pay the costs of the suit and dismiss it, for $ 400. I feel that this is a liberal offer, from the standpoint from which I view this case, which is about this: You purchased a tax title against a man who had died in 1855 and I think also the records show that it was sold in the name of Alexander Corder, when the correct name was Alexander Cowden, as is shown in the original patent which I have. I hold deeds from all his legal heirs, which I think clearly gives me the title. I think you sold the land many years ago to Larkin for $ 800. You have had the use of this money all these years on a tax title which only cost you a few dollars.

"I have laid out of my money for five years, and the amount named will only let me out whole, while you still have a small profit, and will be able to keep good faith with your purchaser, Mr. Larkin, and close the entire matter with all parties satisfied. The suit was only filed to save the statute of limitation and was in no way intended to annoy you; but if we are to settle it please let me hear from you soon, as I think your court comes in March or April, and, like you, I don't want any law whatever between us. We are well.

"Yours, with respect,

"Scott Nesbitt."

To this letter plaintiff made reply, March 4, 1890. Leaving out the formal parts and immaterial matter, the reply is as follows:

"I will accept your proposition, with the understanding that you will deliver to me all the papers you have in reference to the land, U.S. patent and other deeds. You may make Q. C. deed in blank and send it with the other papers to J. B. Egger, and authorize him to insert either my name or Mr. Larkin's, which ever may be proper, and he will return the four hundred dollars to you as you may direct."

Plaintiff received no reply from the defendant to the above letter, and on March 14, again wrote to the defendant, as follows:

"Scott Nesbitt, Esq., Washington, D. C.

"Dir Sir: -- On the 4th inst., I sent you a letter in reply to your letter of February 26, stating that I accept your offer in regard to the Alexander Cowden land, e. h. f. n. e. 1-4 sec. 36, town. 38, range 28, St. Clair county, and requested you to send Q. C. deed, name of party blank and authorize J. B. Egger to insert either my name or Mr. Larkin's, as may be found proper. As no answer or deed from you is received yet, I would request you, if deed is not yet sent, to please make it complete and insert my name, Fredolin Egger. John B. Egger will remit the amount, four hundred dollars, to you as stated in my former letter. I will perhaps be compelled to be away for some time and wish to have this business settled before."

Both of the above letters from plaintiff to the defendant, were deposited upon the dates they were written, respectively, sealed in envelopes, directed to Scott Nesbitt, 1333 F. street, N. W., Washington, D. C., in the United States postoffice at Appleton City, Missouri, with the postage thereon fully prepaid. The address to which the above-named letters were sent was Scott Nesbitt, 1333 F. street, N. W., Washington, D. C.

On March 31, 1890, plaintiff caused to be sent to defendant, to the same address as above, the following dispatch:

"F. Egger has deposited four hundred dollars to be paid to you on receipt of certain deeds.

"John B. Egger, Cashier."

Plaintiff had then deposited in the First National bank at Appleton City, Missouri, the $ 400 to be paid to defendant upon the delivery of the deed to said land. Defendant did not receive the letter of March 4, but did receive that of March 14, and also the dispatch which was sent to the same address.

On May 1, 1890, defendant...