Sooy v. Winter

• Decision Date: 05 February 1915
• Citation: 175 S.W. 132,188 Mo.App. 150
• Parties: E. C. SOOY, Respondent, v. R. L. WINTER, et al., Appellants
• Court: Kansas Court of Appeals

175 S.W. 132

188 Mo.App. 150

E. C. SOOY, Respondent, v. R. L. WINTER, et al., Appellants

Court of Appeals of Missouri, Kansas City

February 5, 1915

Appeal from Jackson Circuit Court.--Hon. A. C. Southern, Judge.

Judgment reversed and cause remanded.

Ball & Ryland for appellants.

(1) The petition doesn't state facts sufficient to constitute a cause of action. (2) Under the pleadings and evidence the finding and judgment should have been for the defendants. The allegations of the petition show that the plaintiff and Hoyt deliberately broke the agreement made with Winter at the time the checks for $ 1000 were made out and delivered to him. Under that arrangement and agreement defendants' principal was entitled to a reasonable time within which to accept or reject the offer. 7 Am. & Eng. Encyc., p. 134, note 2; 9 Cyc. 392; Bruner v. Wheaton, 46 Mo. 363; Cangas v. Ramsey Mfg. Co., 37 Mo.App. 297. (3) The theory of the petition, and of the court below in making its finding and rendering its judgment, was that, notwithstanding the arrangement for the submission of the proposition and the deposit of $ 1000 for the purpose, as even Hoyt expresses it of making "the deal sure," the plaintiff and Hoyt had a lawful right to withdraw their offer at any time between the time when it was resubmitted and before it was actually accepted, and that they could lawfully do this without allowing any reasonable time. This is not the law. 9 Cyc. 387; Tiedeman on Sales, sec. 41; Pollock on Contracts Wald. Ed. 24; Lawson on Contracts, sec. 28; Litz v Goosling, 21 L.R.A. 127; Note 128, 130.

Cook & Gossett for respondent.

(1) An offer to contract may be withdrawn at any time before it is accepted. Groomis v. McCully, 93 Mo.App. 544; Arnold v. Cason, 95 Mo.App. 426, 433, 439; Soran v. Richards, 151 Mo.App. 656, 660; Egger v Nesbitt, 122 Mo. 667; 9 Cyc. 284, 5, 6, 7. (2) So, as a corollary to the above, an offer given to an agent who has no authority to accept it, but only to forward it to his principal may be withdrawn at any time before it is accepted by the principal. 9 Cyc. 285.

OPINION

ELLISON, P. J.

Plaintiff's action was instituted to recover $ 500, the amount of his check payable to defendant and cashed by the latter. He recovered judgment in the circuit court.

The controversy arose over a proposal for the purchase of real estate. It appears that the New York Life Insurance Company owns what is known as the Heist Building on Main street in Kansas City. That the chief office and the principal officers of the insurance company are in New York City; but defendants resided in the former city and were the agents for the company's property in that city. Plaintiff and W. A. Hoyt, acting together, made an offer to defendants of $ 75,000 for the property. Defendants stated they were not authorized to sell at that price, but if plaintiff and Hoyt would authorize them to make the offer and put up $ 1000 "to make sure" of the sale if the offer was accepted, the money to be returned if the offer was not accepted, and to supply on purchase money if it was, they would submit it. This was agreed to and plaintiff and Hoyt each gave their checks to defendants for $ 500, plaintiff's check being thereafter cashed. Defendants submitted the offer to the company in New York City and the latter rejected it. Defendants notified plaintiff and Hoyt and proposed that they authorize them to resubmit their proposition of $ 75,000, promising to endeavor to prevail upon the Insurance Company to accept. Plaintiff and Hoyt agreed to this and in accordance therewith let the two checks remain with defendants.

This agreement to resubmit the offer on the same terms was on the 24th of December, 1912, and defendants' letter to the company making the resubmission was read to Hoyt and mailed on the 25th. But on the second day thereafter, perhaps before the company received the new offer, at least before there was reasonable time to act on it, plaintiff and Hoyt, in a telegram by the latter, withdrew "all offers." On the 31st of December the company formally accepted the renewal offer and defendants notified Hoyt that the company was ready to close the deal. The greater part of the foregoing statement of the facts is taken from plaintiff's petition.

The general rule of law is that an offer of purchase may be withdrawn before it is accepted, or the party receiving the offer has changed his position, to his detriment, in consequence of the offer: Groomis v. McCully, 93 Mo.App. 544. As bearing on the question see also Egger v. Nesbit, 122 Mo. 667, 27 S.W. 385 and Soran v. Richards, 151 Mo.App. 656, 660.

But this rule does not prevent one from protecting himself against such withdrawal by requiring an agreement from the one making the offer to pay damages, if the withdrawal is made before a certain time named for acceptance; or, before a reasonable time has expired, if no certain time is fixed. The parties may therefore agree that the offerer will pay to the other a certain sum to be considered as liquidated damages in case he withdraws the offer before a reasonable opportunity for acceptance, or if accepted, he fails to consummate the offer by purchase: Tiedeman on Sales, sec. 41; Pollock on Contracts, 24; Litz v. Goosling, 21 L.R.A. 128, 130, (note).

We think there was evidence tending to show, considering the circumstances of the entire transaction, that plaintiff and Hoyt agreed that the sum put up by them should be considered as liquidated damages in case they refused the property after the company had a reasonable opportunity to accept and did accept their offer, or in case they withdrew their offer before there was reasonable time for the company to decide on acceptance.

But this agreement must be based on a legal consideration. If it lacks a consideration it cannot, of course, be enforced. In this case there was no consideration moving from the insurance company to plaintiff and Hoyt, or either of them to support their contract not to withdraw their offer of purchase until the expiration of a reasonable time for its acceptance by the company; or, that if they did withdraw it, they would pay one thousand dollars liquidated damages. The effect of the contract was merely that plaintiff and Hoyt would give the company's proper...