| Mo. | Feb 16, 1918
Plaintiff recovered judgment against the defendant for $10,160 as damages for the breach of his alleged contract to purchase and pay for a farm. Defendant has appealed.
The case was here on a former appeal and is reported in 188 S. W. 79.
The plaintiff, in writing, leased to J. H. Lipscomb of Kansas City a farm of about 800 acres at Aullville, Lafayette County, in this State, for a term of three years ending on March 1, 1911. In the same writing she gave Lipscomb an option on the land at $36,000, and gave him also the power to sell the farm any time during the lease, he to have all excess over that sum. The evidence on both sides shows that said farm was sometimes called the “Jo Shelby farm,” and sometimes called the “Anderson farm.”
Defendant was a resident of Kansas City, but spent much of his time looking after his live stock interests in Texas. He had a secretary and financial agent, R. B. Thornton, in Kansas City, who paid his
We will now set out the correspondence between the parties, giving all the contents of the letters so far as they are material here, and leaving out the remainder.
Exhibit 2.
■ May 10, 1909.
Mr. Nathan Hall,
115 Garfield Ave., City.
My dear Mr. Hall: —
From the conversation I had with your daughter, 1 know that she wants very much the 800-acre farm at Aullville, but I am also satisfied that she will be governed entirely by what you say.
J. H. Lipscomb.
Exhibit 3.
September 18, 1909.
Mr. Nathan Hall,
Junction, Texas.
My dear Mr. Hall:
1 suppose, of course, that you have abandoned the idea of purchasing the 800-acre farm, but I would regard it as a great personal favor if you would send me the letter which Mr. White wrote in answer to yours to him asking about the Lafayette County farm.
J. H. Lipscomb.
Exhibit 4.
Junction, Texas, September 26, 1909.
Mr. J. H. Lipsc'omb,
K. C., Mo.
Dear Sir:
I have abandoned the idea of purchasing Anderson farm at price asked. If you want to present another offer to Mrs. Anderson I will make you a proposition. I will give $54,000 for the farm provided I could get possession any time soon in payments as follows:
N. J. Hall.
Exhibit 5.
December 15, 1909.
Hr. Nathan Hall,
Richland Springs, Texas.
Dear Sir:
On November 30 I wrote you what I thought was a very persuasive letter but it seems that I was entirely mistaken and you have not even answered it. I do not like to take your failure to answer my letter as a refusal on your part to buy the farm.
J. H. Lipscomb.
Exhibit 6.
January 12, 1910.
Mr. Nathan Hall,
Richland Springs, Texas.
Dear Mr. Hall:
I am not going to take your failure to answer my last two letters as an evidence that you are not interested in the 800-acre farm nor as an evidence that you are opposed to hearing from me.
J. H. Lipscomb.
Exhibit 7.
Feb. 'll, 1910.
Mr. Nathan Hall,
Richland Springs, Texas.
My dear Mr. Hall:
If you will pay $56,000 for the 800-acre farm I will give you possession immediately; that is within 30 days, or if you do not care to look after it this year I' can allow you $2000 for rent until March 1, 1911. You offered $54,000 for the place. Please let me hear from you at once.
Yours truly,
J. H. Lipscomb.
Exhibit 8.
February 12/1910.
Mr. Nathan J. Hall,
Richland Springs, Texas.
Dear Mr, Hall:
I cannot keep from insisting on your buying the 800-acre farm, in Lafayette County,
J. H. Lipscomb.
Richland Springs, Texas, 2-16-10.
Mr. J. H. Lipscomb,
Dear Sir:
■ Will say yours of the 2-11-10 came to me yesterday. Now I don’t know that I can raise the amount of money necessary to buy the farm, however if the parties will come to my offer I will see if I can raise the money to comply with my offer of 54 thousand dollars. Yours truly,
N. J. Hall.
Exhibit 10.
Ferbuary 26, 1910.
Mr. Nathan J. Hall,
Richland Springs, Texas.
My dear Mr. Hall:
Your favor of the 16 th inst. at hand. I shall undertake to have your proposition accepted. Please notify me, or Mr. Thornton, just how you want the deferred payments. In your last letter you proposed to pay $20,000 cash and the balance in one or two years at 5 per cent. If I can have your proposition accepted, this arrangement as to payments will be satisfactory.
J. H. Lipscomb.
Exhibit 11.
Richland Springs, Texas, 3-2-10.
Mr. R. B. Thornton,
Dear Sir:
Your letter received also one from J. H. Lipscomb in regards to the sale of the Jo Shelby farm. You can say to Mr. Lipscomb that my offer of $54,000, $20,000 cash, balance in one and two years at 5 per cent per annum, he to furnish a complete abstract clear of all liens of all kinds. You may say to him that at the time I made him the offer I had the $20,000 in the bank, but I have been making some investments and it may take me a few days to raise this money, and I do not care to raise it unless I make this deal; and if I make the deal I will want possession at once or by April 1st at least. Now if he can close deal at once you can telegraph me and I will come and raise the money and close the trade. If I hear nothing from you or Mr. Lipscomb I will leave about the 20th for my ranch in Kimball Co. I think this is a bad trade for me as I will have to spend so much money in re, pairs on this place and if I had not of made the offer I would not make it now. Yours respectfully. In the meantime look around where I can get ten or twenty thousand or $50,000 at 4 per cent on my main street house. If I can get 4 per cent money I will pay all case (?).
Yours respectfully,
N. J. Hall.
R. C. C. Night Message. The Western Union Telegraph Company.
K. C., Mo., March 5, 1910.
To Nathan J. Hall, Richland Springs, Texas.
Proposition to purchase Anderson farm at fifty-four thousand dollars is hereby accepted. Come at once.
J. H. Lipscomb, Agent.
Defendant objected to each and all of those documents as evidence, on the ground that they did not constitute a contract on the part of the defendant to purchase the land. The objections were overruled.
A few days after the date of said telegram the defendant came home, but refused to proceed with the deal.
At the close of plaintiff’s evidence, and again at the close of all the evidence in the cause, the defendant asked an instruction in the nature of a demurrer to the evidence which was refused.
I. The demurrer to the plaintiff’s evidence forces upon our consideration points which were not called to this court’s attention on the former appeal.
II. The whole of a contract for the conveyance of real estate must be in writing. Its terms cannot be eked out by parol. [Meramec Portland Cement & Mat. Co. v. Kreis, 261 Mo. 160" court="Mo." date_filed="1914-07-14" href="https://app.midpage.ai/document/meramec-portland-cement--material-co-v-kreis-8018979?utm_source=webapp" opinion_id="8018979">261 Mo. 160, l. c. 169.]
III. We will now consider the correspondence between the parties as above set out to see if any contract in writing was agreed upon by the parties.
Exhibit 4 shows an offer by defendant of $54,000 on the terms there named for the “Anderson farm.’’ If that offer had been accepted, even by parol, it would have been binding on the defendant.
Lipscomb in Exhibit 7 refused that offer in effect by making another proposition to the defendant.
Exhibit 9 cannot be considered as a definite offer to take the land at the price named. That letter says, “Now I don’t know that I can raise the amount of
Lipscomb, in Exhibit 10, says, “Please notify me or Mr. Thornton how you want the deferred payments,” thus showing that he did not understand that defendant had made a definite offer to take the land. In Chapin v. Cherry, 243 Mo. 375" court="Mo." date_filed="1912-05-31" href="https://app.midpage.ai/document/chapin-v-cherry-8018019?utm_source=webapp" opinion_id="8018019">243 Mo. 375, l. c. 401, it was said:
“And as held by this court in the case of Strange v. Crowley, 91 Mo. 287" court="Mo." date_filed="1886-10-15" href="https://app.midpage.ai/document/strange-v-crowley-8008938?utm_source=webapp" opinion_id="8008938">91 Mo. 287, before a contract is completed or binding upon the parties thereto, there must have been a definite proposal made on the one hand, and an acceptance thereof on the other and that such acceptance must have been unequivocal, unconditional and without variance between it and the proposal made.”
It thus appears that, prior to ■ the letter from defendant to Thornton, Exhibit 11, there was no pending-definite offer on defendant’s part to take the farm. There had been one which was refused. This whole case then is dependent on the effect to be givén to Exhibit 11. That letter was not written to Lipscomb, but to Thornton, defendant’s agent. All of defendant’s previous letters as to this business had been written to Lipscomb. The defendant says in this last letter that he had received a letter from Thornton and one from Lipscomb. Why wasn’s Exhibit 11 written to Lipscomb instead of to Thornton? If that letter had been written to Lipscomb it would have been an offer in writing for the land, which, when accepted, would have bound defendant. But defendant did not take that course. He refrained from writing to Lipscomb, but, instead, wrote to his own agent, Thornton. His letter to Thornton did not, in itself, constitute a written offer to Lipscomb, because it was not to be delivered to Lipscomb, but was to remain in the possession of defendant’s agent; in other words,
“It is not alleged in the petition, or claimed by counsel for the appellees, that Johnson was the agent of the plaintiffs, but that he was the agent of the defendants. This being true, the delivery of the letter to Johnson could have no other or greater effect than if it had been written and retained in the possession of the defendants. It is unquestionably true that a memorandum, agreement or deed must be executed by the party to be bound, or his authorized agent, and delivered to and accepted by the other party to take the case out of the operation of the statute and its clear intent and meaning. ’ ’
There is no evidence in this case to indicate that the letter from defendant to Thornton was ever delivered to Lipscomb. The fact that plaintiff offered it in evidence may indicate that she was in possession of it at the trial, but there is no indication as to when she obtained such possession. Even as it is, her possession is merely physicial. She has no lawful possession of it, and has never had. The law gave Thornton no authority as such agent to deliver that letter to plaintiff or her agent. In addition to that, the letter on its face says, “You may say to him,” etc. That language plainly indicates the intention that Thornton was to hold possession of the letter and not deliver it to Lipscomb.
It may be here remarked that the defendant did not then know the fact, which was avowed by Lipscomb on the stand, that he, Lipscomb, was paying Thornton a commission. It may be that a timely discovery
Our statute provides that “the agreement upon which the action shall he brought, or some memorandum or note thereof, shall be in writing.” Let it be granted that, though the contract is oral, if there is a! “memorandum or note” of it properly signed by the party to be charged, it will be sufficient. There need'be no controversy about the proposition that if two persons meet and- orally agree on the terms of the sale and purchase of real estate, and a memorandum of such an agreement is made and signed by one of those persons, such memorandum will bind the person so signing it, even though it may remain in his possession. It is, under the statute, a sufficient memorandum to bind him. But there is no oral contract in this case followed by a written memorandum of it. There is no “memorandum or note” such as is contemplated by the statute.
The difference between a contract in writing and a “memorandum or note” of an oral contract is clearly stated in Lowther v. Potter, 197 F. 196" court="E.D. Ky." date_filed="1912-05-27" href="https://app.midpage.ai/document/lowther-v-potter-8783823?utm_source=webapp" opinion_id="8783823">197 Fed. 196, where it is said:
“The statute recognizes that a contract for the sale of real estate and a memorandum or note thereof are two distinct things and requires that one or the other must be in writing. The latter presupposes a previous oral contract; the former does not. Now in a case not involving a memorandum or note of a previous oral contract, but simply whether a written contract for the sale of real estate has been made, there must be a delivery. A delivery is essential io the making of the contract for the sale. Such was the case of Newburger v. Adams, 92 Ky. 26" court="Ky. Ct. App." date_filed="1891-09-19" href="https://app.midpage.ai/document/newburger-v-adams-7132536?utm_source=webapp" opinion_id="7132536">92 Ky. 26, 17 S. W. 162. In that case the purchaser delivered to the vendor’s agents, who, in turn, handed to their principal, the vendor, a written offer to buy. The vendor indorsed on this written offer an acceptance thereof, but changing the terms as to the payment of the purchase*317 price in a slight particular, sufficient, .however, to prevent the making of the contract had there been a delivery without more. The vendor retained the' written offer with his acceptance indorsed thereon, and thereafter the purchaser gave verbal assent to the change in terms to the vendor’s agents or to the vendor, to which not appearing. Thereafter the vendor tendered a deed in accordance with the contract, and demanded performance on part of the purchaser, and upon his refusal brought suit to enforce it. It was held that he was not entitled to the relief sought because of the nondelivery of the acceptance of the offer. Inasmuch as the purchaser gave his assent to the change in the terms of payment of the purchase price, the case was disposed of the same-as if the acceptance had made no change in the terms, so that there would have been a binding contract had the acceptance been delivered.”
That case went to the Circuit Court of appeals where that language was approved. [137 C.C.A. 451" court="6th Cir." date_filed="1915-04-06" href="https://app.midpage.ai/document/lowther-v-potter-8795035?utm_source=webapp" opinion_id="8795035">137 C. C. A. 451.]
For the reasons given the letter from defendant to Thornton was never, in contemplation of the law, delivered to Lipscomb, and, hence was not an offer in writing to Lipscomb to buy the land, and could not be accepted as such an offer.
The judgment is reversed and the cause is remanded.
PER CURIAM: — The foregoing opinion of Roy, C., is adopted as the opinion of the court.