103 Mo. 70 | Mo. | 1890
The plaintiffs, Thomas J. and J. J. Creen, were real-estate agents at Kansas City in this state, and the defendant resided at Edwardsville in the state of Illinois. He had been trading in real estate at Kansas City and owned some seventeen acres of land at that place. The plaintiffs in their petition allege in substance that in the month of July, 1885, they entered into a contract with the defendant whereby they were to take charge of the said tract of land, have it surveyed and laid off into lots, and to sell the lots ; that out of the proceeds arising from sales the plaintiffs were to be paid the costs of surveying and platting the property, and also the sum of $30,000, with interest on $15,000 at the rate of eight per cent, per annum, and that the balance of the proceeds were to be equally divided
The plaintiffs, who are the appellants, cite many cases to show that the contract, though resting in parol, is not within the statute concerning frauds and perjuries which provides that no action shall be brough t upon any agreement that is not to be performed within one year. As the defendant waives the consideration of this question no more need be said concerning it.
At the close of the plaintiffs’ case the court ga,ve two instructions, the first of which is a demurrer to the evidence; and the second is to the effect that, though there was a parol agreement between the parties, still if it was understood between them that the agreement should be reduced to writing and that was not done, then there was in fact no agreement.
The evidence introduced by the plaintiffs tends to show that defendant and the plaintiffs made a parol agreement concerning the surveying, platting and sale of the land as stated in the petition, at the office of the plaintiffs in Kansas City in the month of July, 1885. The evidence of one of the plaintiffs is that after the terms of the agreement had been settled he drew up a contract. This witness then says: “Mr. Cole came in late in the afternoon and read this contr act, and then I suggested making another copy and that he would sign it. Mr. Cole said he was in a hurry for the train and could not wait, and that he would write out a copy and send it to me signed ; that he did not do ; the agreement was complete.”
On cross-examination this witness testified :
“ Q. Did you make the final agreement in your office? A. Yes, sir.
*75 ■ “ Q. You both, agreed there that whatever contract you made 'should be in writing; the understanding between you was that the contract was to be reduced to writing? A. The understanding was that it was in writing, presented to Mr. Cole and accepted by him.
“ Q. You prepared a written contract and presented that to Mr. Cole, and that embodied your contract as you understand it ? A. Yes, sir.
‘ ‘ Q. He was to look it over, execute and return it to you ? A. He was to write out a copy of it. He had already accepted it in my office ; but would not wait for the copy.
“ Q. So he took it home ? A. Yes, sir.
“Q. He was to make a copy of it? A. Yes, sir.
“ Q. And was to execute and return it to you ? A. Yes, sir.
“ Q. Now, when this written agreement was drawn, you, of course, had agreed between yourselves that the contract must be in writing, liadn’t you ? A. As far as the transaction went.
“Q. Didn’t you say both of you, previous to drawing up the contract, that whatever contract you made must be in writing? A. Not that I know of ; I don’t remember saying that.
“ Q. Didn’t you say to Judge Cole that you would not enter into a contract unless it was in writing ? A. That is, probably, my idea; but I don’t remember that I did or not.”
From the twenty-seventh of July to the eighteenth of September, 1885, considerable correspondence ensued between the parties concerning the name of the addition, surveying and platting of the land. During that time and pursuant to this correspondence the plaintiff had the land surveyed-and platted and forwarded plats to the defendant. They also had the weeds removed from the land, the existing roads repaired, and caused the land to be prepared for sowing grass seed. In a letter written by the defendant onv the fourteenth of
It is a well-settled principle of law that to constitute a contract the minds of the parties must assent to the same thing in the same sense. There must be a mutual assent to all of the propositions ; for so long as any matter forming an element of the contract is left open, the contract is not complete. Though the terms of the contract may all be agreed upon, still if the parties make it a condition to the existence of a contract that the terms agreed upon be reduced to writing and signed by them, there is no contract until this is done. 1 Addison on Contracts [Morgan’s Ed.] p. 37. On the other hand, it is well-settled law that, where the parties have assented to all the terms of the contract, the mere reference to a future contract in writing does not negative the existence of a present contract. In other words if the parties make an agreement which they intend shall be binding from the time it is made, effect will be given to it from that time, though they intend it shall be superseded by a more formal written agreement. 2 Whart. on Contracts, sec. 645 ; Bonnewell v. Jenkins, L. R. 8 Ch. Div. 70 ; Ridgway v. Wharton, 6 H. L. Cas. 238; Blaney v. Hoke, 14 Ohio St. 292; Montague v. Weil, 30 La. Ann. 50; Mackey v. Mackey's Adm'r, 29 Grat. 158; Bell v. Offutt, 10 Bush, 632.
In the re'cent case, Allen v. Chouteau,, 102 Mo. 309, a written proposal concluded with these words: “If
Enough has been said to show that, where parties have assented to all the terms of a parol agreement, it does not follow from the mere fact that a written contract is to be thereafter prepared and signed, that no binding contract was made. If they intend the parol contract should be binding upon them, then effect will be given to that intention.
If there was nothing more in this case than the evidence of what occurred at the office of the plaintiffs when the defendant took the memorandum of a contract and agreed to sign it, we should not disturb a judgment given on a demurrer to the plaintiffs’ evidence ; for the very fact that defendant did not then sign it is strong evidence that he had not as yet assented to all of its terms. But from the other evidence it appears the parties went on in the execution of some agreement, and, in the absence of any showing to the contrary, the’ inference is that it was the agreement testified to by the plaintiff. As the evidence tends to show but one agreement, which was acted upon for several months, the conclusion might well be drawn that the parties intended it should be binding from the time the terms were agreed upon. The demurrer to the evidence should have been refused, and it also follows from what has been said that the second instruction is not correct, for it proceeds upon the notion that there could be no contract so long as the parties intended to, but did not, reduce these completed negotiations to writing.
The defendant insists that the alleged contract was a mere contract of agency, and was revocable at his pleasure. In other words the position of the defendant is, that the authority or power conferred upon the plaintiff was not a power coupled with an interest. It is the interest in the subject on which the power is to be executed, and not an interest in that which is produced by the exercise of the power, that makes a power coupled with an interest. State ex rel. Walker v. Walker, 88 Mo. 279, and cases cited. We do not see how it can be said the plaintiffs acquired any interest in the land by their verbal agreement; and it must follow that the agency was revocable. But the plaintiffs performed services under the agreement before the agency was revoked and it does not follow that they are not entitled to recover, because the agency was revoked. It will be time enough to say what the measure of damages is, when the facts of the case are all disclosed and the trial court has ruled upon that subject. The judgment is reversed and the cause remanded.
