Robinson, Watson & Co. v. Kindley

36 Kan. 157

• Court: Supreme Court of Kansas
• Decided: January 15, 1887
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

Two reasons are assigned for a reversal of the judgment of the district court: first, that its conclusion of law is not sustained by the facts; and second, that competent and proper testimony offered by the plaintiffs at the trial was excluded. None of the testimony is preserved, and the facts stated by the court must be accepted here. There is no real controversy regarding the agreements between plaintiffs and defendant. The first agreement was made about the 5th day of May, 1884, by which the defendant employed the plaintiffs as brokers to procure purchasers for two tracts of land within six months, at a stated price and for a stipulated commission. One of the conditions of that agreement was, that if the defendant sold his land during that time without the intervention or assistance of the plaintiffs, no commission would be paid them. The defendant began negotiations with a resident of Missouri, named Shafer, about June 20, 1884, for the sale of his land; and of these negotiations the plaintiffs had notice. On July 14, 1884, and before a conclusion had been reached between Shafer and the defendant, the plaintiffs brought two persons Avho Avere ready to purchase not only the lauds included in the agreement first made, but also another tract purchased by defendant about July 1, 1884. The defendant then informed plaintiffs and the proposed purchasers that he had sent a definite proposition by mail to Mr. Shafer to sell a portion of his land, and was looking for an answer, and hence could not sell that portion. Instead of taking the other tracts, or of insisting upon a sale of all the land, it was agreed by the plaintiffs that they would wait 'until July 19, 1884, to enable the defendant to hear from Shafer, and if Shafer did not then accept the defendant’s proposition a sale of all the defendant’s land, including the tract last purchased by him, should be made to the proposed purchasers. This modified agreement superseded the former one, and under it the defendant’s reserved right to sell for himself was extended to July 19. The letter containing this proposition to Shafer was dated July 7, 1884, and mailed the next day, and Shafer’s letter in reply was dated and mailed on July 11, 1884, and was received by the defendant before July 17, 1884, and just what was intended by Shafer’s letter, and whether it constituted an acceptance of the defendant’s proposition, is the actual controversy in the case. It will be noticed that this letter was written and mailed before the time when the plaintiffs procured and produced purchasers for the defendant’s land; and the findings also disclose that for the defendant to make compliance with the modified agreement of July 14, it was enough that an agreement had been reached between himself and Shafer to sell and purchase the land. It was not necessary that the transaction should be fully consummated, nor was it in the contemplation of the parties, as the court finds, that a conveyance should be made, or that a formal agreement should be executed. The defendant’s letter of July 7 made a distinct aud definite proposition to sell to Shafer, the terms of which evidently differed somewhat from an earlier proposition that had been made. In his letter Shafer expresses surprise in regard to the change of the terms, but he distinctly says, “ I want the farm, and will be there with my family in two or three weeks.” The court, after hearing the evidence, (which is not before us,) held that the letter constituted an acceptance of the defendant’s proposal, and found that it was such an acceptance as the parties contemplated in their agreement of July 14, 1884, and we are bound to presume that this finding was made upon sufficient evidence.

Shafer is a farmer, who is evidently not skilled in the use of language, and his letter does not very clearly state his purpose j but in the absence of the evidence, we are unable to say that the findings and conclusion of the court are erroneous. The subsequent conduct of Shafer to some extent confirms the theory of acceptance. He came on from Missouri at once, arriving at Downs, in Osborne county, the nearest railway station, on July 23, 1884, and instead of stopping to make further negotiations with the defendant, proceeded at once to move his goods on and take possession of the land for which he had been negotiating. Three days afterward the defendant and wife executed a deed to Shafer for the price required in defendant’s letter of July 7, and the bargain was fully consummated in substantial compliance with the terms then proposed by the defendant. It is claimed that the latter part of Shafer’s letter, in which he says, “Now about having work done on the farm, I would rather you would not have more work done than you can help, as I intend to be there in time to put out the crop myself after we made the bargain,” indicates that the bai’gain was not closed. This was Shafer’s reply to the statement of defendant, made in his letter of July 7, that all plowing or work done on the place before the contract, was made should be paid for by Shafer, and the direction given to defendant not to continue plowing, or not to have more work done, is not inconsistent with an intention on Shafer’s part to take the land. It is true, he uses the words “ After we made the bargain,” and in the postscript of the letter he says that “ If this is not satisfactory, or if you think you cannot wait two or three weeks until I come out, and so we can make out in person, you will please let me know as soon as convenient.” It is not improbable that the words “made” and “make out” were used with reference to the formal execution of the conveyance and the final consummation of the transaction, and this the court finds was not within the contemplation of the parties in making the second agreement. Looking at the correspondence alone, we would be in considerable doubt in regard to whether Shafer’s letter constituted an acceptance; but the facts have not been presented to us as they were to the trial court, and hence we do not feel warranted in disturbing its findings.

An objection is made to the refusal of the court to permit Shafer to state what his intentions were in writing the letter of July 11, 1884. The court was called on to determine, not what Shafer secretly intended, but rather what purpose the letter, read in the light of surrounding circumstances, indicated. The witness was not asked to decipher any-of the characters employed, nor to give the meaning of any provincial or peculiar words used in his letter. He was asked long after the letter was written to state what his secret intentions were when he wrote and sent it, and this was not permissible. (1 Greenl. Ev., §277.)

The judgment of the district court will be affirmed.

Horton, C. J., concurring. Valentine, J: With very grave doubts, I concur.