Northrup v. Colter

• Decision Date: 24 October 1910
• Citation: 150 Mo. App. 639,131 S.W. 364
• Parties: NORTHRUP v. COLTER.
• Court: Missouri Court of Appeals

131 S.W. 364

150 Mo. App. 639

NORTHRUP v. COLTER.

St. Louis Court of Appeals. Missouri.

October 24, 1910.

1. EVIDENCE (§§ 201, 318) — JOINT ADVENTURES (§ 5) — HEARSAY.

Plaintiff and defendant jointly contracted with the owner of land to sell it on a commission, and subsequently plaintiff and defendant contracted with a printer for advertising matter exploiting the land which was to be sold at a sale. In an action by plaintiff to recover for defendant's share of the expense of the printed matter, defendant put in evidence his letter to the landowner, in which he proposed to withdraw from the whole matter, and not attend the sale, if the landowner would pay him his expenses and for his time while procuring the contract of agency, and a letter from the owner in reply stating that the owner would be responsible for the sum requested, and also testimony that the owner told plaintiff of the contents of the letter from defendant, and that plaintiff instructed the owner to pay the sum requested to eliminate defendant from the contract. Held, that the admission of such evidence was error, as it did not tend to show a release of defendant from liability for the printing, and the letters were hearsay as to plaintiff, while the testimony as to plaintiff's advising the owner to accept the proposition neither tended to prove an admission against interest, nor that plaintiff had accepted a proposition to release defendant which was never made.

2. CONTRACTS (§ 16) — OFFER AND ACCEPTANCE.

To constitute a contract on the theory of an offer and acceptance, the offer itself must be complete and reasonably definite as to terms; such contracts arising only upon an agreement of minds, so that particular terms other than those which the law implies are not included, unless set forth with reasonable certainty in the offer or its acceptance.

3. CONTRACTS (§ 16) — OFFER AND ACCEPTANCE — ESTOPPEL.

The doctrine that where a proposition sufficiently clear is submitted to another to act upon and the person to whom it is submitted makes such statement or does such act with respect thereto as would lead an ordinarily prudent person, acting in good faith, to believe that the proposition has been accepted, and the proposer proceeds to the fulfillment of the conditions and terms imposed, a contract may be found from such conduct, notwithstanding the secret intentions of the party claimed to have accepted the proposition, proceeds in accordance with the principles of natural justice, and is akin to an estoppel in pais.

4. ESTOPPEL (§§ 54, 118) — ESTOPPEL BY CONDUCT — EVIDENCE.

Evidence to establish the essential elements of estoppel by conduct or misrepresentation must be clear, precise, and unequivocal, indicating that the person against whom the estoppel is invoked must have made the representation relied on with full knowledge of the facts, unless his ignorance was the result of negligence.

5. ESTOPPEL (§ 56) — ESTOPPEL IN PAIS — ESSENTIAL ELEMENTS.

There can be no estoppel in pais unless it appear that the person in whose favor such estoppel is claimed was misled in some way by the one against whom the estoppel is invoked.

Appeal from Cape Girardeau Court of Common Pleas.

Action by George Northrup against R. T. Colter. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Benson C. Hardesty, for appellant. Frank Kelly, for respondent.

NORTONI, J.

This is a suit in contribution. The finding and judgment were for defendant, and plaintiff prosecutes the appeal. The controversy arose through the payment by plaintiff of an indebtedness owing by him and defendant jointly for printing and advertisements. Defendant having declined to pay his portion of the indebtedness, plaintiff paid the entire bill, and instituted this suit to the end of recovering one-half thereof from defendant.

It appears plaintiff Northrup is a real estate agent residing and doing business at Cape Girardeau, Mo., and defendant is a real estate agent residing and doing business at Muskogee, Okl. One G. E. Alt owned a considerable tract of unimproved lands, amounting to something over 17,000 acres, in southeast Missouri, and employed plaintiff and defendant, real estate agents, jointly to advertise and sell the same. A written contract was executed between Alt and the two parties to this suit on January, 8, 1908, whereby the two real estate agents were authorized to sell the lands mentioned, or portions thereof, at given prices, on or before February 21st of that year. It was stipulated in the contract that the agents should bear all of the expenses pertaining to the sales, except that incident to the execution of deeds, and should receive as their commissions for any land sold by them between January 8th and February 21st all sums which might be received therefor over and above a given price. The evidence tends to prove that immediately upon procuring an agency for the lands, as above indicated, plaintiff and defendant together called upon Naeter Bros., publishers of Cape Girardeau, and contracted for a considerable amount of printed matter and advertisements in numerous daily newspapers for the purpose of exploiting the lands and terms of sale. The indebtedness thus contracted for printing and advertisements amounted to $309.36. It was agreed between plaintiff and defendant that defendant should take a portion of the printed matter, and make a trip immediately through the states of Iowa, Minnesota, and Dakota for the purpose of advertising the land and forming connections with real estate agents in those states to the end of disposing of the same. We infer from other facts in proof plaintiff was to remain in Cape Girardeau and look after the local end of the business. On the evening of the day the parties contracted the account for printing (which was about January 8th), defendant Colter returned to his home at Muskogee and there remained. In other words, he failed to make the proposed trip through the Northern states, or do anything towards furthering the sale of the lands. Naeter Bros. demanded a payment on their printing bill, and plaintiff wrote defendant at Muskogee, urging him to send his check for $100 for the purpose of paying it on the account, as the arrangement called for immediate cash payment. Defendant failed to respond with the check requested, and plaintiff afterwards, and before this suit was instituted, paid the entire amount, as was proper. It appears plaintiff wrote several letters to defendant, urging him to action in the matter, both by requesting payment of his portion of the account and urging him to put forward some effort toward effectuating a sale of the lands. A controversy arose between the parties, and was conducted by means of an acrimonious correspondence. Letters between the parties in the record indicate that plaintiff was much vexed with defendant's conduct in the matter, and that defendant sought to evade his portion of the responsibilities which accrued under their association in the contract with Capt. Alt whereby they procured the agency to sell the lands. Through some arrangement, we know not what, for the details are not disclosed by the record, a sale of the land or a portion thereof was to be conducted at Cape Girardeau about February 2d, and, just before this sale, defendant wrote Capt. Alt to the effect that, if Alt would pay him $150, he would withdraw from the whole matter, as his associate, the plaintiff, seemed to be dissatisfied with his conduct.

The questions for decision relate to the action of the court in permitting this letter to be introduced in evidence, and giving an instruction thereon for defendant. As before stated, the present suit is prosecuted by Northrup, one of the real estate agents, against Colter, his associate, for one-half of the amount of the printing bill, which the two agents contracted and which Northrup was required to pay. On the trial, the court permitted defendant to read in evidence the letter from defendant to Capt. Alt, dated January 31, 1908, by which he proposed to withdraw from the whole matter and not attend the sale if Alt would pay him $150 to recoup his expense, and pay for...