102 Mo. 309 | Mo. | 1890
— This is an action brought by the executors of Thomas Allen against Charles P. Chouteau to recover over $24,000, because of moneys expended by Allen in the payment of taxes on some two hundred thousand acres of land in the counties of Scott and Stoddard for the years 1871 to 1878, both inclusive. The cause of action is founded on a letter from Chouteau to Allen. The cause was heard by a referee, upon whose report judgment was entered for the plaintiffs for the sum of $20,659, and from which judgment both parties have appealed. As it is insisted by defendant that the proposal made by the letter was never accepted, so as to become a contract, it is necessary to set out much of the evidence.
In 1857 the Cairo and Fulton Railroad Company made a deed of trust conveying to trustees a large quantity of lands, including the lands now in question, to secure the payment of sixteen hundred bonds of $1,000 each, with interest coupons attached.
Charles P. Chouteau, the defendant in this case, claiming to own a large number of the bonds commenced his suit on the tenth of December,. 1871, in the Mississippi circuit court to foreclose the deed 'of trust, making Thomas Allen and some five other parties defendants. Allen was made a defendant on the ground that he clu imed to own the lands ; the other defendants held some of the bonds secured by the deed of trust. Allen answered by denying the validity of the deed of trust, and by setting up its invalidity and that he was the owner of the lands in fee.
While these appeals were pending in this court, Chouteau addressed to Allen the following letter, constituting the basis of this action:
“ St. Louis, December 6, 1877.
“ Thomas Mien, TJsq.
“Dear Sin: — Your valued favor of the fourth inst. being sent to the office of Chouteau, Harrison & Valie, instead of my own, is only this moment received. In reply I beg to say that if you will pay all taxes now due on the lands covered by my suit pending in the supreme court of Missouri, in the case between you, myself and others, and lying in the counties of Stoddard and Scott, and that I shall obtain a good title to said lands, or any 'of them, by the present litigation, I will refund to you the amount paid and interest on such lands as I shall obtain a good title to. If this is agreed to, the agreement can fully be drawn up and signed. ,
“ Very truly yours,
“Charles P. Chouteau.”
Allen’s letter of the “ fourth inst.” appears to have been lost, so that it was not produced on the trial. It does not appear -that any agreement was drawn up and signed as suggested in Chouteau’s letter; nor does it appear that Allen made any written acceptance. The evidence, however, shows that a stringent tax law had been passed in 1877; that Chouteau and Allen had had some conversations about the payment of these delinquent taxes. Mr. Cooper says he met Chouteau and told him Allen objected to paying the whole of the
On the thirty-first of December, 1877, Allen, through his agents, paid taxes on the lands to the amount of over $7,000, and in 1878 and January, 1879, made additional payments, in all amounting to $24,648.32. This aggregate amount includes $3,409.59 paid in December, 1878, and January, 1879, for the year 1878. Some of the taxes were paid as the result of a favorable compromise with the county court.
After all the foregoing transactions and on the tenth of October, 1879, this court reversed the foreclosure judgment, and ordered the circuit court to enter up a judgment in favor of Chouteau on one hundred and twenty-five bonds and attached coupons, and to enter up a judgment in favor of the defendants, other than Allen, on the bonds held by them.
On the sixteenth of April, 1880, the circuit court gave judgment pursuant to the mandate of this court; but in the following May that court allowed Allen to file a second amended answer. In this answer, Allen alleged that he was the owner of two hundred and sixty-three of the bonds secured by the deed of trust and
In December, 1880, tbe circuit court gave judgment of foreclosure in favor of Allen on bis bonds and declared a lien in bis favor for tbe taxes. That judgment was reversed, and this court then entered judgment for Chouteau for $300,000 ; for defendant Seelye, for $123,320 ; for Patterson in tbe sum of $23,618, and in favor of Reid for $2,330. A commissioner was appointed who sold tbe lands and Chouteau became tbe purchaser of one hundred and fifty-six thousand, seven hundred and forty-seven acres in Scott and Stoddard counties, and received a deed therefor, dated October 26, 1882. He purchased and bolds tbe lands for himself and the other judgment creditors in tbe proportions of their respective debts. Some fifteen thousand, one hundred and twenty acres were withdrawn from that sale by the judgment creditors and were not sold, because they bad been before sold under tbe terms of the deed of trust. The sale of tbe lands by tbe commissioner, it may be added, did not pay tbe foreclosure judgments.
On tbe foregoing and some other evidence to be hereafter noticed, tbe referee found that tbe taxes for 1871 to 1877 had been paid by Allen on the faith of tbe letter of December 6, 1877; that tbe payment of tbe taxes constituted an acceptance of that letter; that tbe final foreclosure judgment gave Chouteau a title, within tbe meaning of tbe letter, to all tbe lands described in tbe judgment, in tbe proportion of bis debt to all of tbe judgment debts, which for convenience may be called a two-thirds interest. He excluded all evidence as to taxes paid for 1878, so that the judgment in favor of plaintiffs was for two-thirds of tbe taxes paid for 1877 and prior years,
But the objection is not well taken for another reason. The answer avers that Allen refused to, and did not, accept the proposition in the letter contained, and that no agreement was ever drawn up and signed ; all of which is denied by the r,eply. The answer aids the petition and accomplishes all that could be done by an amended petition. Stivers v. Horne, 62 Mo. 475; Henry v. Sneed, 99 Mo. 424.
2. After Allen had filed his second amended answer in the foreclosure suit of Chouteau against Allen and others, setting up ownership to a large number of bonds secured by the deed of trust, and asking to have the taxes paid by him declared a lien on the lands, Chouteau took Allen’s deposition and filed it in that case. That deposition was read in evidence by Allen’s executors on the trial of the present case, over the objections of defendant.
It is a well-settled principle that depositions taken in one case may be read in another suit between the same parties concerning the same subject-matter. 1 Greenl. Ev., sec. 163. As parties to a suit may now testify the same rule applies to their depositions. Lohman v. Stocke, 94 Mo. 677; Adams v. Raigner, 69 Mo. 363. Allen being dead, his deposition filed in the former suit was properly received in evidence in this one.
3. Allen’s deposition having been filed in this cause, and read by the plaintiffs, the court properly allowed Chouteau to testify in his own behalf. Caughlin v. Hauessler, 50 Mo. 127. But the defendant complains that he was not allowed to answer questions to the following effect: When did you first know of the payment of these taxes by Allen from 1872 to 18771 What contract, if any, between you and Allen was ever drawn up and signed as contemplated by the letter of December 61 What contract in writing between you and Allen was ever made in regard to the payment of said taxes 1
The referee sustained the objections to these questions on the ground that Chouteau’s evidehce must be confined to matters covered by Allen’s deposition. Allen in his deposition says : “I agreed with Chouteau that one or the other of us should go on and protect these lands from trespassers and pay those taxes, and he wrote me a note which I will produce hereafter. The deed of trust says the taxes have to be paid. I paid them, no matter whose lands they are — that depends on the decision of the court.” Being asked if there was any agreement between him and Chouteau concerning the payment of these taxes he said, “ No. The agreement, if any, depends on the correspondence, or writing. We had some conversations and I addressed him a note. I thought I ought to advance the money and pay the taxes, and that it should depend on the result of the suit as to who should pay them. I reduced it to writing in a note addressed to him.”
It is clear that the first of the interrogatories has no relation whatever to anything testified to by Allen. Chouteau took the deposition of Allen for the evident
4. On the part of the defendant, it is insisted that the referee erred in charging him with taxes on the lands withdrawn from the commissioner’s sale, and to which he acquired no title. The plaintiffs, on the other hand, insist that the referee erred in allowing them only two-thirds of the amount of taxes paid by their testator, and that he erred in excluding the taxes paid for the year 1878. As these objections are all made on the assumption that Chouteau’s proposal ripened into a contract, and as they all depend upon the meaning of the letter, they may be considered together.
Chouteau said to Allen, you pay the taxes and “I will refund to you the amount paid and interest, on said or such lands as I shall obtain a good title to ” by the present litigation. It was then apparent to him ■ that to secure the debt which he sued to recover it might become necessary for him to purchase the lands. Hence, the proposition made was this, to refund the taxes paid on those lands and those only to which he should obtain a good title. He obtained no title by the foreclosure judgment; nor did he obtain title to the lands which were not sold under that judgment. The lands withdrawn from that sale were withdrawn because they had been sold under the terms of the deed of trust. Had they been sold by the commissioner and purchased by Chouteau, he would have acquired no title.
Chouteau says, “If you will pay all the taxes now due on the lands,” etc. The letter bears date December 6, 1877; and the question is whether the taxes for 1878 were due within the meaning of the proposal. While the lien for the taxes of 1878 related back to the first of August, 1877, still the assessment was not completed until the first of January, 1878, and the taxes were levied during the year 1878. The tax books could not go to the collector until after the fourth Monday of April, 1878. It was the vast amount of delinquent taxes and the revenue act of 1877 that induced the correspondence. When the letter speaks of taxes “now due” it means such taxes as could have been paid at that time, and not such as might thereafter be levied. The referee, therefore, did not err in excluding the taxes for.1878.
,5. The next question is whether there was any contract between the parties. The letter concludes with these words : “If this is agreed to, the agreement can be fully drawn up and signed.” Allen went on and paid the taxes without any further agreement. A party making a proposal, or an acceptance of one, may make
The letter here in question presents a very plain, full and complete proposition. The clause concerning a more formal agreement is not expressed in such a way as to show that a formal written agreement signed by both parties was intended to be made a condition to the existence of a contract. It rather says to Allen, “a formal agreement can be drawn up and signéd, if you desire it to be done.” We think Chouteau must have known that Allen would so understand the clause in question; and if Chouteau must have known that Allen would understand it to mean that a more formal contract need not be drawn up, unless Allen desired it to be done, then, Chouteau being the proposer, is bound by that meaning. Had Allen replied by saying: “I accept your proposition,” the contract would have been complete without any further waiting.
We do not regard the case of Eads v. The City of Carondelet, 42 Mo. 113, as at all in conflict with what has been said. In that case the proposition of Mr. Eads was accepted by the first section of the ordinance; but the second section gave the mayor power to enter
This brings us to the further objection that Allen did not accept the offer or proposal, nor communicate any acceptance to defendant.
To make a mere offer or proposal a contract there must be an acceptance, and notice of the acceptance must be given, unless it appears from the offer that notice is not required. Robinson v. Railroad, 75 Mo. 494. But assent and notice need not be formally expressed ; the assent may be given and communicated by conduct as well as by words. Pollock on Cont. 28. Pull jjerformance of the consideration of an offer, before the offer is withdrawn, constitutes an acceptance of the offer. Bishop on Contracts, secs. 87, 329; Langdell’s Cas. on Contracts, 989 ; Bornstein v. Lans, 104 Mass. 215; Perkins v. Hadsell, 50 Ill. 216 ; Leake on Cont, 50; Lindell v. Rokes, 60 Mo. 249 ; 1 Whart. on Cont., sec. 10. There is no doubt but Allen made full and complete performance of the pffer.
But it is here again insisted that he did not pay the taxes on the faith of the letter, but was moved so to do to protect his own interest. He and Chouteau were both in doubt as to the result of the pending litigation, and Allen had expressed an unwillingness to pay the taxes, except upon some agreement with Chouteau. They had a conversation concerning these delinquent taxes, and then followed the correspondence. Allen immediately sent for his land agent and made arrangements to pay the taxes, and within thirty days paid a large portion of them. Can there be any doubt that he acted upon the strength of that letter ? We think not.
Chouteau certainly had knowledge on May 28,1880, when Allen’s deposition was taken, of the payment of
In January, 1881, and while the appeal from the foreclosure judgment in favor of Allen was pending in this court, Allen and Chouteau made a written agreement whereby Allen agreed to pay- the taxes on the lands for the years 1879 and 1880, and Chouteau agreed to immediately reimburse him to the extent of one-half. In a letter written by Allen to Chouteau on the twenty-third of February, 1881, he spoke of the payment of taxes under that agreement, and asked to be repaid the one-half, and then said, “I should be pleased, if you would also reimburse me, in part, at least, for the still larger amount paid by me in ’77, ’78, ’79.” Mr. Chouteau answered by referring Allen to his attorneys. Chouteau settled with Allen’s son, in 1881, for the taxes paid under that agreement. The fact that no settlement of the prior taxes was then made is of no significance ; for Chouteau was not bound to refund those prior taxes until he obtained title to the lands, and at that date he had acquired no title. The lands had not. then been sold under the foreclosure judgment.
Allen died in April, 1882, and had been a sick man away from home for a year prior thereto. The letter constituting the basis of this action was found- with other valuable papers, and was presented by the agent for the estate to Chouteau for settlement. There is much evidence of conversations between the agent .and Mr. Chouteau, but it does not change the conclusion before reached as to the facts, and need not be recited.
