Logan v. Waddle
| Decision Date | 11 October 1926 |
| Docket Number | 25154 |
| Parties | M. R. Logan v. B. L. Waddle, Appellant |
| Court | Missouri Supreme Court |
Transferred from Springfield Court of Appeals.
Affirmed.
G A. Watson and G. Purd Hays for appellant.
(1) The letters on which plaintiff claims to base his case and make a contract do not describe the land to be traded or exchanged and therein fails to make a contract under the Statute of Frauds. Beckmann v. Nepham, 97 Mo.App. 161; Bursa v Cash, 171 Mo.App. 396; Ringer v. Holtzclaw, 112 Mo. 519; Allen West Comm. Co. v. Richter, 228 S.W. 830; Welsh v. Veasley, 227 S.W. 59; Mason v. Small, 130 Mo. 249; Hain v. Burton, 118 Mo.App. 577; Shultz v. Hunter, 188 Mo.App. 520. (2) There had been no performance or even part performance of the alleged contract by either plaintiff or defendant. No property had exchanged hands. Each party was left on the first day of June, the day claimed by plaintiff that the alleged contract was breached, just as they were, that is, each had the same property. No delivery or possession was taken or given by either plaintiff or defendant. Nothing had been done to take the case out of the Statute of Frauds. Two or three letters had been exchanged and that is all. Welsh v. Veasley, 227 S.W. 59; Wolfskill v. Wells, 154 Mo.App. 302; Allen v. Richard, 83 Mo. 55; Hook v. Turner, 22 Mo. 333. (3) No damages were proven, no loss in the market value of the truck. What he could have made by using the truck is speculative damages and should have been excluded from the jury. Therefore plaintiff's Instruction 1 should not have been given. Warren v. Mayer Mfg. Co., 161 Mo. 112; Fuller v. Presnell, 233 S.W. 502; Consumers' Glue Co. v. Mfg. Co., 181 S.W. 1086; Koetz v. Bleckman, 60 Mo. 320; Rickey v. Broeck, 63 Mo. 563; Schumacher v. Breweries Co., 247 Mo. 162; Bank v. Murdock, 62 Mo. 73. (4) It is the duty of the court as required by law to say whether the letters introduced make a contract, and not leave that question for the jury to find from the evidence, as is done by Instruction 1 given for plaintiff. Commission Co. v. Drug Co., 148 Mo.App. 327; James & Sons v. Trust Co., 69 Mo.App. 207; Hay v. Bankers Life Co., 231 S.W. 1038; Stock Food Co. v. Bridges, 160 Mo.App. 131. (5) The court committed error in giving Instruction 2 for the plaintiff, as the jury are instructed to find $ 100 damages for the time the defendant refused to use the truck, being about four days, while he and defendant were exchanging letters. Cases under points 3 and 4. (6) The court erred in overruling defendant's demurrer at the close of all the evidence and submitting the case to the jury. The aggregatio mentium necessary to constitute a valid contract is not shown by the evidence, which is four letters. Comm. Co. v. Drug Co., 148 Mo.App. 327; Batavia v. Railroad, 126 Mo.App. 15; Sarran v. Richards, 151 Mo.App. 661; Scott v. Davis, 141 Mo. 213.
Moore, Barrett & Moore for respondent.
(1) From the writings there is sufficient description of the property to be exchanged. Black v. Crowther, 74 Mo.App. 480; Hammond v. Johnson, 93 Mo. 198; Wilcox v. Sonka, 137 Mo.App. 54; Kriting v. Cramer, 152 Mo.App. 431; Ranck v. Lafferty, 255 Mo. 54. The general rule is that it must appear from the memoranda what the subject-matter of the engagement is, but the identity may sufficiently appear by reference to external standards. A reference to a deed or deeds conveying the same property may be sufficient. Fox v. Courtney, 111 Mo. 150; Darnell v. Lafferty, 113 Mo.App. 296; Christenson v. Wooley; 41 Mo.App. 464. The description of the subject-matter may be wholly or partially contained in an auxiliary writing which if referred to in such a manner as to establish the connection becomes a constituent part of the memorandum. Pomeroy on Specific Performance (2 Ed.) par. 90; Cement & Material Co. v. Kries, 261 Mo. 170; Springer v. Kliensorge, 83 Mo. 152. (2) The writings constitute a contract -- a definite proposal and an unconditional acceptance. Logan v. Waddle, 238 S.W. 516; Gale v. Carpet, 182 Mo. 498. (3) Facts and circumstances showing receipt, or being properly stamped and deposited in the United States mails, show the mailing of a letter. Ward v. Marr Transfer Co., 119 Mo.App. 88. (4) The court never submitted to the jury the question of the letters constituting a contract, nor the legal effect of such letters. Therefore the authorities cited in appellants brief are not in point.
Upon a division of opinion in the Springfield Court of Appeals, this case was duly certified to this court in pursuance of constitutional provisions.
Respondent commenced this action in the Circuit Court of Christian County to recover damages for breach of an alleged contract for the sale of real estate. Upon change of venue this trial of the cause was had in the Circuit Court of Lawrence County wherein respondent recovered a judgment for $ 300.
Respondent in his petition alleges the contract to be: That appellant would pay respondent the sum of six hundred dollars in money and would make him a good and sufficient deed for a house and two lots located in the town of Ozark, and respondent was to deliver an automobile truck to appellant on the 10th or 15th day of June, 1919, and respondent was to assume and agree to pay an incumbrance on said real estate amounting to one thousand dollars. The petition alleged that said contract was evidenced by writings duly signed by the said parties, and that from the same the terms of said contract as aforesaid were ascertainable.
The answer was a general denial, want of sufficient consideration, and the Statute of Frauds, appellant insisting that the alleged contract, sought herein to be established by correspondence between the parties, is not valid or binding under the Statute of Frauds of this State which provides that: "No action shall be brought . . . upon any contract made for the sale of lands . . . unless the agreement upon which the action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith." [R. S. 1919, sec. 2169.] His contention, in substance, is that the writings and correspondence, which are relied upon to establish a valid binding contract, do not, in themselves, show that the lands therein referred to are the lands in question, and, therefore, no written memorandum, such as the statute requires, was executed.
At the trial the following documentary evidence was introduced:
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