Veatch v. Norman.

• Decision Date: 27 December 1904
• Citation: 109 Mo. App. 387,84 S.W. 350
• Parties: VEATCH v. NORMAN.
• Court: Missouri Court of Appeals

84 S.W. 350

109 Mo. App. 387

VEATCH v. NORMAN.

St. Louis Court of Appeals. Missouri.

December 27, 1904.

BROKERS—SERVICES—EXPRESS CONTRACT— QUANTUM MERUIT—INSTRUCTIONS.

1. Where a petition by a broker to recover commissions counted on an express contract by defendant to pay a certain price if plaintiff obtained a purchaser for an entire tract of timber

land, etc., and the evidence disclosed only a partial performance, plaintiff was not entitled to recover on a quantum meruit.

2. Where, in an action for broker's services in the sale of timber land, a letter written by defendant was silent as to "an average quantity" of timber, certain instructions charging that defendant's proposition contained in such letter only required plaintiff to secure a purchaser of all the land if it contained an average quantity of timber were erroneous.

Appeal from St. Louis Circuit Court; R. M. Foster, Judge.

Action by Charles A. Veatch against W. W. Norman. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Jas. F. Green and W. H. Miller, for appellant. B. B. Oliver, R. F. Walker, and F. W. Imsiepen, for respondent.

REYBURN, J.

The plaintiff declared upon an express contract in form following: "Plaintiff states that on the 4th day of January, 1900, defendant made a written proposal to plaintiff herewith filed, marked `Exhibit 3' to pay him $980 if he secured a purchaser at $5 per acre for defendant of the timber rights in certain timber lands of about 5,480 acres, lying in Townships 24 and 25 North, Ranges 14 and 15 East, in New Madrid county, Missouri, the property of the defendant, said lands being referred to in said proposal, as described in a plat and letter received by plaintiff of defendant dated December 26, 1899, and the timber on said lands being described by defendant in said letter as yielding timber per acre as follows, viz.: 4,000 feet of white oak, 1,000 feet of ash and hickory, 3,000 feet of gum and elm. Copy of said plat, with said letter, is herewith filed marked `Exhibit 4,' the original plat being in the possession of defendant. That thereupon, plaintiff relying upon defendant's said representations, accepted said proposal by his letter mailed and addressed to defendant at his residence, postage prepaid, which written acceptance was duly received by defendant on or about January 8th, 1900, and that thereupon plaintiff procured a buyer for defendant's said timber rights on said lands, or the oak timber on said lands, in the person of the Pioneer Cooperage Co., and notified defendant of the name of said buyer on or about the 6th day of January, 1900, and that thereupon, on or about the 24th day of March, 1900, defendant sold to said Pioneer Cooperage Co. the right to remove the oak timber from said tract of 5,480 acres of land described in said plat and letter of December 26th, 1899, or the right to remove the oak timber from so many acres of land contained in said plat of 5,480 acres as contained oak timber, being from 3,840 to 4,520 acres in area, at the price of $19,000; that the unsold portion of the 5,480 acres aforesaid was not purchased by said Pioneer Cooperage Co. for the sole reason that it did not contain the oak timber as represented to plaintiff by defendant in his said letter of December 26th, 1899; that plaintiff did on the ___ day of March, 1900, after said sale, make demand of defendant," etc. The case went to trial on general denial as defense, and a jury returned a verdict for the amount sought. The testimony at the retrial did not materially differ from that elicited and preserved in the former trial and record on the earlier journey of the case to this court. 95 Mo. App. 500, 69 S. W. 472. The plaintiff based his cause of action upon a contract in writing, the full performance of which he alleged on his part, but the proof introduced by him at this trial was substantially to the following effect. Learning, in the close of the year 1899, that defendant had timber lands in the market for sale he addressed a letter of inquiry, which evoked the following reply:

                     "Cape Girardeau, Mo., Dec. 26, 1899
                

"Mr. C. A. Veatch, St. Louis, Mo.—Dear Sir: Replying to your favor of the 23d inst., I own a body of good wagon oak 5,480 acres near Henderson Mounds on the Cotton Belt Railroad. It will cut 4,000 feet white oak, 1,000 feet ash and hickory, 3,000 feet gum and elm per acre, but I have just about sold this timber. I am offered $5 per acre for it, and as I bought it very low and am making a good profit, I have written the party that I would take the $5 but it is worth more money. If you are looking for wagon stock you ought to have this tract of timber, but probably it is more than you want. If you want a body wagon timber, write me just what you want and I will hunt it up for you. Tell me what you would like for it to cut per acre, and about what you would be willing to pay for it per thousand in the tree. Of course I know you want to buy as cheap as you can, but you will have to pay for good wagon timber, as it is getting scarce, but I know of some good tracts besides the 5,480 that I own. I wish I had got your letter sooner. I was in St. Louis all last week. I would have went to see you and could have found out just what you want.

"I enclose you a plat of this timber of mine, but you must return it at once. Now, don't forget it. I have no blanks at present or I could soon make another.

                      "Yours truly
                              "[Signed] W. W. Norman."
                

The plat accompanying this letter was duplicated by plaintiff, and then returned with a letter of about December 27th, in answer to which defendant wrote:

"Dear Sir: I have your letter of December 28th with plat returned as requested. The timber marked in blue is some I bought early in the summer, and I hold that at $3.50; the other I just recently bought. This last I got will cut 10,000 feet...