Manion Blacksmith & Wrecking Co. v. Carreras

• Decision Date: 27 October 1885
• Citation: 19 Mo.App. 162
• Court: Missouri Court of Appeals
• Parties: MANION BLACKSMITH & WRECKING COMPANY, v. E. E. CARRERAS, Appellant.

19 Mo.App. 162

MANION BLACKSMITH & WRECKING COMPANY,

v.E. E. CARRERAS, Appellant.

St. Louis Court of Appeals, Missouri.

Oct. 27, 1885.

APPEAL from the St. Louis Circuit Court, LUBKE, Judge.

Reversed.

EDMOND A. B. GARESCHE, for the appellant: The proposition and acceptance completed the contract between the parties. Noyes v. Phœnix Life Ins. Co., 1 Mo. App. 588; 1 Parsons on Contracts, 511. To constitute a binding contract, the legal assent of the parties is absolutely indispensable, and there are three requisites to such an assent; it should be mutual, it should be without restraint, and it should be understandingly made. Suydam v. Clark, 2 Sandf. 133; Jenness v. Mount Hope Iron Co., 53 Me. 20-23; Hartford & N. H. R. R. Co. v. Jackson, 24 Conn. 514. And a proposal by one party, which is not accepted or assented to by the other, is not binding upon either. Lungstrass v. German Ins. Co., 48 Mo. 201; Stitt v. Huidekopers, 17 Wall. 384 (84 U. S., 21 Law Ed. 644); Chicago & G. E. R. R. Co. v. Dane, 43 N. Y. 240; Crocker v. New London, W. & P. E. R. R. Co., 24 Conn. 261.

A. J. P. GARESCHE, for the respondent.

THOMPSON, J., delivered the opinion of the court.

This is the defendant's appeal from the judgment rendered in the same case, which was before us on the plaintiff's writ of error, in the cause ( post, 535), The action is for a balance due upon an open account, for a steam engine and furnishings supplied by the defendant to the plaintiff. The only question in issue was whether the defendant was to pay the plaintiff for the things furnished, the sum of $399.50, in addition to a steam engine of the defendant, which the plaintiff was to take in part payment at a valuation of one hundred and fifty dollars; or whether he was to pay $399.50, less one hundred and fifty dollars, the agreed value of the defendant's engine, which the plaintiff was to take in part payment. The question was merely a question of fact, namely: as to what was the agreement upon which the minds of the parties had met. It appeared that they had had some negotiation touching the matter, after which the plaintiff had entered the items on its order book, together with the prices at which it would furnish them, and it directed its book-keeper to send a written proposition to the defendant transcribed from the order book. This the book-keeper attempted to do, couching it in the following language:

“P. P. Manion Blacksmith and Wrecking Co., Corner

North Levee and Morgan St.,

St. Louis, Sept. 7th, 1880.

Mr. E. E. Carreras,

Cor. Locust and Second Sts.,

St. Louis.

DEAR SIR: I propose to furnish you” (naming the articles, how to be delivered, etc., and adding): “your engine, now at Anthony Hack's, to be taken by me at the agreed price of one hundred and fifty dollars, as partial payment for the sum of three hundred and ninety-nine dollars and fifty cents ($399 50/100). Soliciting your favors, I remain,

Very truly Yours,

P. P. MANION,

D.”

The defendant's testimony tended to show that he accepted this proposal...