Hunt v. Johnston

• Decision Date: 31 March 1857
• Parties: HUNT, Respondent, v. JOHNSTON, Appellant.
• Court: Missouri Supreme Court

24 Mo. 509

HUNT, Respondent,

v.JOHNSTON, Appellant.

Supreme Court of Missouri.

March Term, 1857.

1. Mere proposals preliminary to a contract form no part thereof, unless incorporated into it.

Appeal from Jefferson Circuit Court.

Frissell, for appellant.

Noell, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was a suit brought to recover from Johnston twelve hundred and fifty dollars for so much money had and received by him for the plaintiff. The plaintiff charges that the defendant and himself, being the owners as tenants in common of a certain amount of real estate, agreed between themselves that the said Johnston should sell one-half thereof for a sum not less than ten thousand dollars, and to receive as his compensation any excess he might be able to get over that amount, and was to retain one-fourth interest himself and to secure to the plaintiff one-fourth interest in the land. The plaintiff charges that Johnston did proceed to sell, and did sell, more than one-half interest in the land, viz: twenty-one thirty-fifth parts thereof, for the sum of twenty-one thousand dollars. Plaintiff charges that defendant sold of the plaintiff's interest ten thirty-fifths, and out of his own share eleven thirty fifths; that plaintiff and defendant executed a deed to carry out this arrangement, from which it will be seen that there is reserved to plaintiff one and one-fourth thirty-fifth parts less than the interest that was to be reserved to him according to said agreement; and for this excess over the one-fourth sold, thereby leaving less than one-fourth remaining to plaintiff, the said Johnston received the sum of twelve hundred and fifty dollars, and refuses to pay the same to the plaintiff, and, therefore, he asks judgment for the same and interest thereon.

The defendant answered, denying the plaintiff's right to recover. He denies that there was any agreement between plaintiff and himself that he (defendant) should sell one-half of the land in the deed in the petition mentioned for a sum not less than ten thousand dollars. He denies that there was any agreement between them that he should retain one-fourth interest for himself and secure one-fourth interest to the plaintiff. He states that he and plaintiff were tenants in common and owners of nineteen hundred and twenty-one acres of mineral land, entered by them between the 26th day of December, 1853, and the 18th of January, 1854, both days included. He sets out the numbers of the land entered by the township, range and parts of sections. He states that about the date of the last entry of said lands, wishing to dispose of part of the same, he wrote to plaintiff asking if he would be satisfied for this defendant to sell one-half of their lands, consisting of upwards of nineteen hundred acres, for ten thousand dollars, five thousand of which was to be paid to plaintiff, and defendant retaining five thousand dollars, and whatever he might get over ten thousand, for his trouble in selling. About the same time he requested the plaintiff to select some of the best of said lands, and not include them in the contemplated sale. In reply, plaintiff urged the defendant to sell all the lands, reserving only a small fractional piece of about sixteen acres. He also mentioned an eighty acres more which he thought had better be reserved; he mentioned also a forty acre tract which was not included in their entries. He also expressed his willingness to take five thousand dollars for one-half of his interest in all of the land which they had entered as above mentioned, and urged the sale of the whole. The defendant admitted that by selecting eleven hundred and twenty acres of said land, and that not of the best quality, and by dividing it into thirty-five shares, he effected a conditional sale of twenty-one of said shares nominally at one thousand dollars a share. He alleged that the sale of these twenty-one shares was dependent upon the proper conveyance being made of said eleven hundred and twenty acres by the plaintiff and defendant to certain persons in Pittsburgh, in whom the legal title was to be vested for the benefit of the different shareholders; that after making the conditional sale, and before receiving any portion of the money, he returned to Missouri, and after informing the plaintiff fully of all he had done--that conditional sales had been made of twenty-one out of thirty-five shares into which the eleven hundred and twenty acres had been divided, nominally at one thousand dollars per share; that no part of the money became due till after the deed should be made, and that no part of it had been paid--and in consideration of two thousand dollars then paid by defendant to plaintiff, the plaintiff made an agreement dated 15th March, 1854, with the defendant, by which it was stipulated that the plaintiff should be paid three thousand dollars more; that seven and a half shares, out of the thirty-five into which the eleven hundred and twenty acres had been divided, should be delivered up to him upon the execution of the deed for his interest in the eleven hundred and twenty acres of land to the trustees in Pittsburgh as aforesaid; that plaintiff afterwards received the sum of three thousand dollars and the seven and a half shares, and executed the deed; that upon the payment of the three thousand dollars and receipt of the shares the whole business was fully settled between plaintiff and defendant, and all demands against defendant in favor of plaintiff fully paid.

There was a trial and judgment for the plaintiff for the sum of fourteen hundred and five dollars and ten cents. The defendant moved for a new trial, which being overruled, he brings the case here by appeal.

From the bill of exceptions we find that the deed by Hunt, the plaintiff, and his wife, and Johnston and his wife, to the trustees, Kidmer and Robur, for the eleven hundred and twenty acres of land in trust for the shareholders, bears date 31st March, 1854. In this deed seven and a half parts or interests are reserved for Hunt. The testimony shows that the propositions about the sale of a part of the land were made in some letters from Johnston to Hunt. It becomes material to notice these propositions and the answer of Hunt. In Johnston's letter to Hunt, dated 17th January, 1854, at St. Louis, he says: “Will you be satisfied to give me for my trouble, etc., in making the sale--that is, provided I can do it--all I can get over ten thousand dollars in cash or good paper, for one-half of all the mineral land we have entered at the ‘Old Mines,’ having no reference to the Casey lands, and you and I still to own one-quarter each, and the ten thousand dollars to be divided between us--five thousand, each--say about twelve hundred acres of land? In case you are willing that I may have all I can get over the ten thousand, say so by return mail, and I will try my best. If you wish to do it, I think you had best get Sarah Hunt to write it; you sign it, and Mr. O”'Mara can direct it. Have the letter directed to No. 41 South Fourth street, and it must come next mail.” In his letter dated 18th January, 1854, at St. Louis, to Hunt, he says: “If you consent to my selling in the way I proposed--one-half of say twelve to fifteen hundred acres--I want you to select those that you would prefer to keep for ourselves, recollecting, however, that you and I will only sell one-quarter each of the twelve or fifteen hundred acres, which I propose selling for ten thousand dollars. I to have any thing which I may obtain over that for my trouble, etc., and you to have five thousand dollars and I five thousand dollars of the said ten thousand. State in your letters to me the numbers, etc.--all in township 38--which you would rather keep for ourselves, and, as I have all the numbers, I will select those you do not want, if I should succeed in making a sale.” In a letter dated 30th January, 1854, at Philadelphia, to Hunt, Johnston says: “Your favor of the 22d inst. came to hand this morning; I shall wait patiently for the map, etc., of Mr. O”'Mara, and will proceed with my effort to dispose of the half (or otherwise, as I can) of 1,500 or about that number of acres of mineral land. I wrote to you from Chicago stating that some objection presented itself to me in presenting only half of land to parties; that I thought I would be compelled to divide the whole fifteen hundred acres-- about that--into so many parts, and you and I retain each our parts equal with the other parties. This letter you have doubtless since received, and I ask you to authorize me to do whatever I thought proper, so that you and I hold interests in it according to the parties interested. I, therefore,...