Green v. Cole

Decision Date02 February 1891
Citation103 Mo. 70,15 S.W. 317
PartiesGREEN et al. v. COLE.
CourtMissouri Supreme Court

1. A land-owner and a real-estate agent agreed on the terms of a contract, by which the agent was to have the land laid off into lots, which he was to sell, the proceeds above a stated sum to be divided between the parties, and the agent to have two years in which to make sales. It was understood that the contract was to be in writing. The agent drew up an agreement, which the land-owner read. The agent then suggested making another copy, and that the agreement should then be signed. The owner said he could not wait, but would make a copy, sign it, and send it to the agent. This was on July 27th, and from that time to September 18th there was much correspondence about the naming of the addition and the surveying and platting of the land. On August 14th the owner wrote asking if any lots could be sold that fall. Nothing was said about any agreement until October 5th, when the agent spoke of an existing agreement for the sale of the land on the terms stated. The owner did not reply, but sold the land himself, without consulting the agent. Held, sufficient evidence to support a finding that the parties intended that the contract should be binding from the time the terms were agreed on.

2. The contract did not create a power coupled with an interest, and the authority was revocable; but, the agent having performed services under the agreement, he is entitled to sue for its breach.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Gates & Wallace, for appellants. Geo. B. Burnett, for respondent.

BLACK, J.

The plaintiffs Thomas J. and T. J. Green were real-estate agents at Kansas City in this state, and the defendant resided at Edwardsville in the state of Illinois. He had been trading in real estate at Kansas City, and owned some 17 acres of land at that place. The plaintiffs, in their petition, allege, in substance, that in the month of July, 1885, they entered into a contract with the defendant, whereby they were to take charge of the said tract of land, have it surveyed, and laid off into lots, and to sell the lots; that out of the proceeds arising from sales the plaintiffs were to be paid the costs of surveying and platting the property, and also the sum of $30,000, with interest on $15,000 at the rate of 8 per cent. per annum, and that the balance of the proceeds were to be equally divided between the plaintiffs and the defendant, and that plaintiffs were to have two years in which to make the sales. On the 2d January, 1886, the defendant conveyed the entire tract to other parties for the consideration of $50,000; and this is a suit to recover damages for a breach of the contract alleged to have been made with the plaintiffs. The plaintiffs, who are the appellants, cite many cases to show that the contract, though resting in parol, is not within the statute concerning frauds and perjuries, which provides that no action shall be brought upon any agreement that is not to be performed within one year. As the defendant waives the consideration of this question, no more need be said concerning it. At the close of the plaintiffs' case the court gave two instructions, — the first of which is a demurrer to the evidence; and the second is to the effect that, though there was a parol agreement between the parties, still, if it was understood between them that the agreement should be reduced to writing, and that was not done, then there was in fact no agreement.

The evidence introduced by the plaintiffs tends to show that defendant and the plaintiffs made a parol agreement concerning the surveying, platting, and sale of the land, as stated in the petition at the office of the plaintiffs in Kansas City in the month of July, 1885. The evidence of one of the plaintiffs is that, after the terms of the agreement had been settled, he drew up a contract. This witness then says: "Mr. Cole came in late in the afternoon, and read this contract, and then I suggested making another copy, and that he would sign it. Mr. Cole said he was in a hurry for the train, and could not wait, and that he would write out a copy, and send it to me signed. That he did not do. The agreement was complete." On cross-examination, this witness testified: "Question. Did you make the final agreement in your office? Answer. Yes, sir. Q. You both agreed there that whatever contract you made should be in writing, — the understanding between you was that the contract was to be reduced to writing? A. The understanding was that it was in writing, presented to Mr. Cole, and accepted by him. Q. You prepared a written contract, and presented that to Mr. Cole, and that embodied your contract as you understand it? A. Yes, sir. Q. He was to look it over, execute, and return it to you? A. He was to write out a copy of it. He had already accepted it in my office, but would not wait for the copy. Q. So he took it home? A. Yes, sir. Q. He was to make a copy of it? A. Yes, sir. Q. And was to execute and return it to you? A. Yes, sir. Q. Now, when this written agreement was drawn, you of course had agreed between yourselves that the contract must be in writing, hadn't you? A. As far as the transaction went. Q. Didn't you say, both of you, previous to drawing up the contract, that whatever contract you made must be in writing? A. Not that I know of; I don't remember...

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98 cases
  • Jewell Realty Co. v. Dierks
    • United States
    • United States State Supreme Court of Missouri
    • 25 Mayo 1929
    ......135, L.R.A. 1915E. 976; Young v. Lanyon, 242 S.W. 685; Carter v. Blair, 201 Iowa, 788, 208 N.W. 283; Allen v. Chouteau, 102 Mo. 309; Green v. Cole, 103 Mo. 70. (b) The essential terms of a contract are set out in the letter with sufficient particularity. Tracy v. Aldrich, 236 S.W. 347; ......
  • Hall v. Greenwell, 23432.
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Julio 1935
    ...agreement. Nicol v. Young, 68 Mo. App. 488; Wells v. Adams, 88 Mo. App. 215; Dyrssen v. Dyrssen Electric Co., 317 Mo. 221; Green v. Cole, 103 Mo. 70; Huttig v. Brennan, 328 Mo. 471; Moran v. Bank, 223 Mo. App. 848; Rice v. Lammers, 65 S.W. (2d), l.c. 154; Kleiner v. Longrader, 75 S.W. (2d),......
  • Hall v. Greenwell
    • United States
    • Court of Appeal of Missouri (US)
    • 16 Julio 1935
    ...... Nicol v. Young, 68 Mo.App. 488; Wells v. Adams, 88 Mo.App. 215; Dyrssen v. Dyrssen Electric Co., 317 Mo. 221; Green v. Cole, 103 Mo. 70; Huttig v. Brennan, 328 Mo. 471; Moran v. Bank, 223 Mo.App. 848; Rice v. Lammers, 65 S.W.2d, l. c. 154; Kleiner v. ......
  • Huttig v. Brennan
    • United States
    • United States State Supreme Court of Missouri
    • 28 Julio 1931
    ...and in effect no contract at all, for lack of the exhibits (three in number) called for therein and stated to be a part thereof: Greene v. Cole, 103 Mo. 70; Mason v. Griffith, 281 Ill. 246; Page on Contracts, sec. 2153; Atkins v. School District, 77 Ind. 447; Pepper v. Harris, 73 N.C. 365; ......
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1 books & journal articles
  • A Contractual Dilemma: Where Arbitration Agreements and Delegation Provisions Collide.
    • United States
    • Missouri Law Review Vol. 86 No. 2, March 2021
    • 22 Marzo 2021
    ...Theroff, 591 S.W.3d at 437. (27.) Arbitration, supra note 1 (emphasis added). (28.) See Theroff, 591 S.W.3d at 437 (citing Green v. Cole, 103 Mo. 70, 15 S.W. 317, 318 (Mo. 1891)) ("It is a well[-]settled principle of law that to constitute a contract[,] the minds of the parties must assent ......

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