Kennedy v. Klein
Decision Date | 26 October 1885 |
Citation | 19 Mo.App. 15 |
Parties | A. G. KENNEDY, Appellant, v. L. KLEIN, Respondent. |
Court | Missouri Court of Appeals |
APPEAL from Chariton Circuit Court, HON. G. D. BURGESS, Judge.
Affirmed.
The instructions numbered one, two, and three, asked by the plaintiff, and referred to in the opinion of the court, are as follows:
It may also be stated that the controversy arises out of a transaction had between plaintiff and defendant in August, 1879, wherein Craddock acts as the agent of both as broker. The plaintiff, through Craddock, submitted a proposal to defendant, who was a merchant at Chicago, to give one thousand dollars in cash and four hundred acres of land in Chariton county, Mo., for a stock of goods owned by Klein, and valued at four thousand seven hundred and sixty-eight dollars--the lands being designated in the proposal by numbers. Klein, after inquiring as to the character and value of the lands, accepted the proposal. After some delay, Kennedy and Craddock went to Chicago to close the trade, when it appeared that only about one-third of the land described in the proposal was offered to be conveyed, and other land substituted for it. But it was agreed by all the parties that Kennedy should try to get deeds to the land described in his offer, and if he failed, should pay the difference between the lands conveyed, Klein to retain the deeds already executed, and also retain the goods until the land matter should be arranged.
Subsequently Craddock wrote Klein that Kennedy could not convey the tracts described in his offer; that he did not own them, but had deposited with him the cash payment of one thousand dollars, and agreed that if the land already conveyed should prove to be of less value than the land originally to be conveyed, he would pay the difference in cash. At the time Kennedy deposited the one thousand dollars, Craddock gave him a receipt “in full of all claims against Kennedy on a contract for the sale of four thousand seven hundred and sixty-eight dollars' worth of goods, sold by me, per invoice, to said Kennedy.”
On receipt of Craddock's letter, and a dispatch, requesting him to ship the goods and draw on him for the money, with bill of lading attached, Klein shipped all the goods except three boxes, and notified Craddock thereof, saying he would ship the three boxes as soon as the land matter was adjusted. Subsequently Kennedy wrote to Klein a copy of the receipt Craddock had given him, which Klein immediately disavowed to both as given without authority, and placed the deeds which had been delivered to him on record.
Kennedy soon after instituted suit against Klein for twelve hundred dollars, alleging in his petition that he had complied with his part of the contract fully, and Klein had retained twelve hundred dollars' worth of the goods. The suit was by attachment, and the lands conveyed by Kennedy to Klein were attached. This suit was afterwards dismissed and the present suit commenced after the remaining three boxes had been delivered. The answer claimed that there was a difference in value between the lands conveyed and the lands agreed to be conveyed, of one thousand dollars, and that other expenses had been incurred for taxes, etc., by which respondent was damaged in the sum of fifteen hundred dollars. The reply of appellant was a general denial.
The case was tried by a jury, upon these issues, and upon instructions (which this court holds to be proper), and the verdict was for defendant, on his counter-claim, assessing his damages at six hundred and sixty dollars. The case was appealed to the supreme court,...
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