Stotesburg v. Massengale

• Decision Date: 30 January 1883
• Citation: 13 Mo.App. 221
• Parties: H. A. STOTESBURG ET AL., Respondents, v. H. F. MASSENGALE, Appellant.
• Court: Missouri Court of Appeals

13 Mo.App. 221

H. A. STOTESBURG ET AL., Respondents,
v.
H. F. MASSENGALE, Appellant.

Court of Appeals of Missouri, St. Louis.

January 30, 1883

APPEAL from the St. Louis Circuit Court, BOYLE, J.

Affirmed.

OVERALL AND JUDSON, for the appellant: To constitute a contract by letter, the parties must agree, ad idem, to the same thing in the same sense. There must be a clear accession on " both sides to one and the same set of terms." --1 Chitty on Con. 15, note; Bourne v. Shapleigh, 9 Mo.App. 64; Herndon v. St. Louis R. Co., S.Ct. Mo., June, 1882 (not published). " If acceptance modifies the proposition in any sense, however trifling, it is no more than a counter-proposition." -- Jenness v. Mt. Hope Iron Co., 53 Me. 23. " Where there is a misunderstanding as to the terms of a contract neither party is bound in law or in equity." -- National Bank v. Hall, 101 U.S. 43 (per Justice Swayne); Utley v. Donaldson, 94 U.S. 29; Baker v. Johnson County, 37 Iowa 86. Where the promise is made before the credit is given, where any credit is given to the party to whom goods are furnished, or he is liable at all, the contract is collateral, and not original.--Brandt on Surety., sects. 63, 64; Cahill v. Bigelow, 18 Pick. 370; Glenn v. Lehune, 54 Mo. 45. The negotiations manifestly contemplated further action to fix the terms of any definite contracts.-- Lyman v. Robinson, 14 Allen 254; Ridgway v. Wharton, 6 H. L. Cas. 268, 304.

CHARLES F. JOY and G. D. BANTZ, for the respondents.

OPINION

BAKEWELL, J.

The petition alleges that the defendant was the agent of the plaintiffs to solicit purchasers of cotton and to collect money as it became due from purchasers of cotton at St. Louis; that, as such agent, the defendant collected $881 on account of the plaintiffs, which they have failed to remit. The answer is a general denial. The cause was tried without a jury, and there was a finding and judgment for the plaintiffs. The action was originally against Massengale and Haynes; but was dismissed as to Haynes.

It appears that Massengale, Cohen & Co. were in business as cotton buyers. Massengale resided in St. Louis and Cohen at Memphis. About December 1, 1880, they practically went out of business at St. La. Haynes, before that time, had been their book-keeper, and they then no longer needed his services, and his salary ceased. He retained their office, which remained as before, and was to pay the rent. Massengale was away during most of the time covered by the transactions hereafter set forth.

Haynes, on November 27, 1880, wrote to McClanahan, a member of the plaintiffs' firm, the following letter, marked " Confidential." The letter is addressed to New York, where the plaintiffs were doing business:--

" I am in the employment of Messrs. Massengale, Cohen & Co., and attend to the future branch of their business. Messrs. M., C. & Co. have as their New York correspondent Messrs. Henry Hentz & Co.

They desire to retain Messrs. H. H. & Co.'s business for the purchase of spot cotton in this market, but from their disinclination to give them reports by wire of their opinion as to the course of the market, they lose a great deal of business. Other brokers receive from their New York correspondents daily, early morning telegrams, giving the status of the market, and an opinion as to its probable course, which, as you can appreciate, has its influence upon the operators here.

The future business which is proposed to be done with your house, although in my name, will be really the business of Messrs. M., C. & Co., and for which they will be responsible. This explanation Major Massengale thought wiser to defer until your arrival in our city. The relations between Messrs. H. H. & Co. and Messrs. M., C. & Co. have been, and are at present, of the most pleasant nature. It would be impossible to get orders for the purchase and sale of New York contracts, if I demanded an immediate margin. No other New York house requires it in this market. I solicit none but reliable and responsible parties--those that can well afford to lose. I have declined, and would do so again, to take orders from weak parties; if such parties are importunate, I require a margin before wiring the order, and even then put in stop instructions upon the exhaustion of the margin. I write this letter of explanation, which I trust you will treat confidentially, in consequence of an inquiry you have instituted in regard to my standing, etc., through Dunn's Commercial Agency.

Very respectfully,

L. A. HAYNES."

This letter was read by Massengale. The matter referred to in it had been talked over between him and Haynes before the letter was written. At the foot of the letter Massengale wrote as follows:--

" FRIEND MAC: I hope you will take the above as confidential. M., C. & Co. represent Mr. Hentz, which he would cancel if we divided our business. He does not keep us posted, and won't express an opinion so as to draw orders to buy or sell, and we desire some one that will. Will explain further when you come.

Yours,

H. T. M."

To this letter the plaintiffs replied as...