Green v. Cole

30 S.W. 135, 127 Mo. 587, 1895 Mo. LEXIS 286

• Court: Supreme Court of Missouri
• Decided: March 19, 1895
• Status: Published

Opinions

Mactahlane, J.

A former appeal in this case is reported in 103 Mo. 70. The case was retried without change in the pleadings. A jury was waived, and there was a finding and judgment in favor of plaintiffs for $9,970. Defendant again appealed.

I. The suit is to . recover damages for the breach of a contract under the terms of which it is alleged that defendant employed plaintiffe to sell for him a tract of seventeen acres of land in Kansas City. The petition charged the contract to-have been in the following terms:

“The plaintiffs were to have said real estate surveyed and replatted in small tracts or lots, put into a condition to sell, to take charge of the sale thereof, and to sell the said real estate as the same should be replatted; that out of the proceeds of said sale or sales there were to be paid, first, the necessary expenses attending said survey, replatting and putting of said ground into condition for sale; then, next, there was to be paid to said defendant the sum of $30,000 and interest on $15,000 thereof, at the rate of eight per cent, per annum from the date aforesaid until said $30,000 should be paid; then, the balance of the proceeds arising from said sale was to be equally divided between the plaintiffs and the defendant.”

T. J. Green, one of the plaintiffs, testified in chief as follows:

UQ. State what propositions were made and accepted, if any? A. I talked to Mr. Cole — after the negotiations to purchase the property had fallen through —I talked to him about my methods of handling real estate for a portion of the profits, and he said to me, ‘What is there to hinder you and I from handling this, or your handling this for me?’ I said, ‘Nothing in the world, if we can agree on the terms,’ and the subsequent conversation led to an agreement.

UQ. Go on and state as well as you can the conversation? A. Well, I agreed to pay him $30,000 for the tract of ground described in the petition out of the proceeds of the sales of the ground after expenses- were paid; and all proceeds over and above $30,000 and expenses were to be divided equally between Mr. Cole and myself, or the firm, rather, with this exception, that I was to pay eight per cent, on $15,000 of the $30,000, which was the net price Mr. Cole was to have for Ms ground. All over $30,000 was to be divided, equally between us after expenses were paid.

“Q. Was there any time fixed which you were to have to do this? A. I was to have two years in which to sell the ground.

“Q. Was there anything else said in regard to what you were to do with it? A. Yes, sir. The understanding and agreement was that I was to proceed to get it in shape for sale,' which I did. I platted it, or had it platted, then graded and put it in shape, the weeds-cut around the edges of the ground, and on the ground, and was making every arrangement to have the ground seeded, and had parties ready to purchase some lots there — had offers made on them.

“Q. Where did that occur? A. In my office on West Sixth street in this city.

UQ. Do you know what time of day it was that you had this understanding with the defendant? A. It was in the afternoon; I think it may have been about 5 o’clock.

UQ. State whether or not Mr. Cole accepted the proposition on your part to handle it that way, what did he say? A. Well, I don’t know that I can state exactly what he said, that is, all he said; I can state some things.

“Q. Well, what can you remember. A. I remember that I had drawn up an agreement which Mr. Cole read over, and it was acecepted by him and agreed to by me.

“Q. Was that signed by either one of you? A. It was not signed by either one óf us. I was about to draw up a copy, which we were ready to sign, but Mr. Cole said he was in a hurry for the train and he would take the copy and send me a copy signed.”

On cross-examination he testified:

“Q. Tell the court just what you did say about the dollar a foot? A. Well, I don’t know that I can give the exact language of the contract.

“Q. Tell the court as well as you can remember it? A. That a dollar afoot would be a part of the compensation for handling the ground. .

“Q.- Was Mr. Cole present when you wrote that? A. Yes, sir.

11Q. You discussed this matter with him in your office? A Yes, sir.

UQ. And you say that you reached-terms? A. Yes, sir.

“Q. Made an agreement there? A. Yes, sir.”

UQ. Tell the court why it was that in writing this paper you did not put it in the form of an agreement rather than in the form of a proposition to Cole? A. This was a memorandum which was agreed to by us there and then.

“Q. You begin by saying, U will handle Troost avenue tract on the following terms.7 Why was it, if you had come to a conclusion or an agreement, you did not put that in the form of an agreement, rather than to state it in the form of a proposition? A. Why, I presume the reason was because we didn’t agree on the proposition until it was written. * * *.

“ Q. If you intended this to be a contract, if the terms had all been agreed on, and this paper was to be signed as the written evidence of the agreement between you and Mr. Cole,- state why it was that you didn’t date it, and why you. wrote it in pencil. A. I didn’t say that paper was to be written evidence. If Mr. Cole had had time, I -presume the idea was to make two copies, dated properly and signed; but Mr. Cole accepted it and with the explanation that he was in a hurry for his train, left the office.

“Q. Was that to be signed or not? A. I understand so. As I said, Mr. Cole took that memorandum and was to make a copy and send to me signed * * *.

“Q. Was it the understanding, at the time that you and Mr. Cole had this conversation, that whatever ■contract you made should be reduced to writing — signed in writing? A. The understanding was, as I have testified before, that the agreement was accepted there, •and Mr. Cole would write a copy, execute it and send it "to me.”

Luring the cross-examination the written memorandum was shown to witness and by him identified, ■and it was in reference to it that he testified. The memorandum was read in evidence by defendant and was as follows:

“I will handle the Troost Ave. tract on the following terms: Thirty thousand dollars to be paid in cash or first mortgage notes secured on the property, and to be paid out of the first sales made after commission of one •dollar per front foot is paid. All notes to bear interest at riot less than eight per cent., payable semiannually, without G. M. Cole’s written - consent, payable one, two-, three, four and five years from date, at the Bank of Commerce. The property to be sold so as to net not less than $30,000 profit, clear of all expenses, profit -and as much more as may be readily obtained; all to be sold in two years from date of filing plat; title to remain in said Granville M. Cole until he shall consent to make other arrangements, and in the event of there being more than $30,000 obtained in net profits for said ground, said net profits to be equally divided between G. M. Cole and T. J. Green; the management to be left with T. J. Green.”

It was admitted by both parties that there had been some indefinite conversations and negotations, in reference to the sale of this property, prior to the submission of this proposition, but there was, it was agreed by both, none afterward. Both agreed that the previous negotiations did not result in an agreement. It is perfectly clear from plaintiffs own testimony, by which he is bound, that, if an agreement was ever reached, it was embodied in this writing.

As will be seen, plaintiff .testified positively and unequivocally that this was the agreement, and as positively that defendant accepted it. On the other hand defendant testified as positively that the proposition was handed him by plaintiff as he was leaving for his home in Illinois, and he never read it, or knew its contents, until after he reached home. He testified as positively also that no agreement was ever reached. No other witness testified on the subject. The form of the memorandum was a circumstance, or fact, very strongly corroborative of the evidence of defendant.

It was agreed that this memorandum was made in the early part of July, 1885. After that, and during the months of July, August and September, 1885, a number of letters and telegrams passed between these parties. Some of these were corroborative of the evidence of plaintiff that a contract between the parties had been agreed upon. These letters show very conclusively that defendant looked to plaintiff to have the land platted and prepared for sale. On August 14, defendant in one of his letters asked, “Do you think we can sell any lots this fall?” On the other hand, on July 20 plaintiff telegraphed defendant to know if he would take $30,000 for the property and pay him a commission of $750. On October 5 plaintiff wrote, “Let me know if you will take $5,000 cash, $5,000 in one, two, three, four and five years at 7 per cent, with privilege of releasing on payment of $1,000 a proportionate amount of ground. I have no offer but think I could make such a deal. I would rather continue on the terms we agreed on with you, namely: $30,000 tobe paid you out of the first sale; I to pay 8 per cent, on $15,000; and then to take half of the net profits over $30,000.” The next previous letter from him was dated September 11.

Defendant did not reply to this letter. He soon thereafter went to Kansas City, and, without consulting with plaintiff, sold the entire property for $50,000. The evidence conclusively establishes one fact, namely: if an agreement was ever made, its terms must be looked for in the written proposition. I may be proper to say here that this proposition was not put in evidence on the first trial and was not in the record on the former appeal.

It appears that the evidence of the two witnesses as to whether the proposition was accepted, was irreconcilably contradictory. The truth must be drawn from the subsequent acts and declarations of the parties and all the circumstances.

The case was tried to the court without a jury. At request of plaintiff the court gave the following declaration of law:

“The court, sitting as a jury, declares the law to be, that, if the court believes from the evidence that in July, 1885, the defendant, Gr. M. Cole, entered into a contract with the plaintiffs to put on the market and sell for him the real estate described in the petition herein, on the following terms, viz.: That the plaintiffs were to have said real estate surveyed and replatted in small tracts or lots, put into a condition to sell, to take charge of the sale thereof,, and to sell the said real estate as the same should be replatted; that out of the proceeds of said sale or sales there was to be paid, first, the necessary expenses attending said survey, replatting of said ground into condition for sale; then, next, there was to be paid to said defendant the sum of $30,000, and interest on $15,000 thereof at the rate of eight per cent, per annum from the date aforesaid, until said $30,000 should be paid; then the balance of the proceeds arising from said sale was to be equally divided between the plaintiffs and the defendant; and that the-plaintiffs, underand in pursuance of said contract, and under the direction of the defendant proceed to perform their part of the contract, and did comply with the same on their part by having the said real estate-surveyed and platted and the necessary work done on the roads bordering on it, the weeds cut from it and the ground put into good condition for the sale of lots,, and thereby made said real estate more marketable; and that thereafter said defendant failed and refused to carry out said contract on his part, and .did, on or about January 2, 1886, sell all of said real estate, and by a good and sufficient warranty deed convey the same-to the Troost Avenue Investment Company, and thereby rendered it impossible for the plaintiffs to go on and comply with said agreement on their part, and that the plaintiffs were always ready and willing to carry out. said agreement on their part, then the finding and judgment of the court must be for the plaintiffs.”

At the request of defendant the court gave these-three declarations of law:

“2. The burden of proof is on plaintiffs, and, unless the court shall believe from the evidence that, the agreement declared on was entered into by the parties, the plaintiffs can not recover.

“3. If there was an agreement entered into concerning the Troost Avenue property, on the terms stated in the paper read in evidence, and by which the-profits of the sale- of the property were to be divided between T. J. Green and the defendant, then plaintiff can not recover under the petition in this case.

“á. If plaintiff T. J. Oreen prepared the paper which was read in evidence and submitted the same to the defendant and he agreed to its terms, and was to execute it and return it to plaintiffs, or was to draw a contract embodying the terms of said paper and execute it, then such agreement superseded any previous arrangement or verbal agreement touching the disposition of the Troost Avenue property, if there was one.”

Upon the evidence and these declarations of law the court found for the plaintiff. It was thus necessarily found that the contract was not on the terms stated in. the written proposition, but that the terms were as charged in the petition. Under the declarations of law, if the finding had been different on this question, the judgment should have been for defendants. This is clear. It is equally clear that this necessary finding was contrary to the unquestioned evidence.

But it is insisted that the difference between the contract as declared upon in the petition and found by the court, and that which the evidence tended to prove, was so slight that the variance was wholly immaterial and could not have changed the result. To this claim we can not give our assent.

It will be seen by comparison that the contract alleged and the one the evidence tended to prove, were substantially different in some of their material terms. In the former, nothing whatever was said about allowing a commission of one dollar per front foot. This item alone may have made a difference of several thousand dollars in favor of one or the other of the parties. This was a matter of substance. The written memorandum contemplates a sale, either in bulk or after 'subdivision into lots, and puts the management entirely in the hands of plaintiff.' In these particulars we think the written proposition differs substantially from the contract sued upon.

As has been said, the truth can only be found under the circumstances in evidence. The evidence of each witness stands unimpeached, except by that of the other and the facts and circumstances. A most potent fact, corroborative of the evidence of defendant is, that the memorandum was put in the form of a proposition. The parties were together talking the matter over, and immediately before the conference was closed, this paper was drawn up by plaintiff. ■ He was a real -estate agent and was familiar with the forms of contracts. A jury might well infer from the form-in which the paper was written that no agreement had then been reached. Now, when the court found, as he- might have done, that this proposition was not agreed to or accepted, and was not the one made-by the parties, the probative force flowing from the form of the memorandum was entirely eliminated and the credibility of defendant’s testimony was thereby greatly weakened. A jury might likewise have inferred that the letters were written by the parties and the slight services performed by plaintiffs were in view of a pending proposition, which it was expected would be accepted. It will be thus seen that the probative force of these letters and acts also would be much greater in the way of corroborating the testimony of plaintiff under the theory that a contract had been made different from the written memorandum.

In view of the manifestly erroneous finding of the court, the material difference between the contract made, if one was made, and the one found by the court to have been made, and the exclusion of facts and circumstances tending to prove plaintiffs’ theory of the case, and to corroborate his evidence, we must hold that prejudicial error was committed in giving plaintiffs’ declaration of law.

We do not wish to be understood as basing this conclusion on technical rules of pleading or of variance between the allegation and the proof. If the evidence had tended to prove the contract as charged in the petition, the variance may not have been fatal after verdict. We place our conclusion on the broad and substantial ground that the issues were tried upon an ■erroneous theory and the finding of facts was without evidence to support it, and we hold that justice and fairness demands that there should be a retrial. The ■only issue to be tried on this branch of the case was whether the proposition made by plaintiff was accepted by defendant. The petition should count upon that -agreement, and plaintiff could only recover on proof of an acceptance.

II. The written proposition allows two years to plaintiff in which to make sale of the property. The ■evidence tended to prove that he performed some service únder the contract in having the land prepared for sale. Under these circumstances, and without other cause, defendant had no right to revoke the authority of plaintiffs. The sale of the land by defendant, while the contract was in force, put it out of the power of plaintiffs to perform their part of it, and was a breach of the agreement, for which they are entitled to recover damages. Glover v. Henderson, 120 Mo. 367.

III. On the measure of damages the court declared that “the proper measure of damages is the profit, if any, which it appears from the evidence would have resulted to them, had they been allowed to complete their contract with defendant, and the land had been sold by them under-the contract.” We find no fault in this declaration of law as applied to the facts in this case. Defendant himself sold the property for $50,000. The net profit realized above $30,000 can be easily ascertained.

We agree to what was said by Baeclay, J., in an opinion filed in the first division: “Had plaintiffs

effected the same sale at that figure, their proper compensation would have been a mere matter of easy computation under the agreement. The fact that defendant made the sale, instead of plaintiffs as his agents, certainly can not diminish the extent of their lawful claim for damages. The terms of the contract and the fact of the sale take the estimate of plaintiff’s loss out of the domain of speculation, and fix with certainty the extent of the gain prevented by the defendant’s breach of the agreement. Where the profit to result from such a transaction is certain and definite in amount, and its loss is the necessary and direct result of the breach of contract, there can be no substantial doubt that it constitutes a just and legal standard of recovery.” Citing Moses v. Bierling, 31 N. Y. 462; Durkee v. Gunn, 41 Kan. 496. Judgment reversed and cause remanded.

Gantt, Sherwood and Burgess, JJ., concur. Brace, C. J., Barclay and Robinson, JJ., dissent.