Ladd v. Missouri Coal & Mining Co.

CALDWTELL, Circuit Judge. This action was commenced in the United States circuit court for the Eastern district of Missouri by William M. Ladd, the plaintiff in error, against the Missouri Coal & Mining Company, the defendant in error, to recover $34,637 damages for the breach of an alleged contract of 881 brokerage. At the close of the testimony, by direction of the court, the jury returned a verdict for the defendant, upon which final judgment was rendered, and thereupon the plaintiff sued out this writ of error. The petition alleges that the defendant was the owner of certain lands in Lincoln county, Mo., which are particularly described, and that on or about the 12th day of January, 1802, the defendant entered into a brokerage contract with the plaintiff, by the terms of which the plaintiff was to have the exclusive right to sell these lands until July 1, 1892, for a sum not less than $60,000, and for his services in making the sale the plaintiff was to have one-half of all he sold the land for above $60,000, and was to receive $8,000 commission before beginning to divide with the defendant the excess over $60,000. It is alleged: That the exclusive right of the plaintiff to sell the lands on the terms mentioned was extended from time to time up to and including the 15th day of November, 1892, and that on the 3d day of November, 1892, the plaintiff sold the lands to A/,el P. Hatch on the following terms, namely: $5,000 to be paid in cash on execution of the contract of sale; $20,000 to he paid on the 1st day of March, 1898, upon delivery of a good and sufficient warranty deed; and the balance to be paid in four equal annual payments, with interest at 6 per cent:, per annum, payable semiannually, to he secured by notes and trust deed on the lands. That Hatch prepared an agreement embracing the terms of sale agreed upon by the plaintiff and Hatch, which was forwarded by the plaintiff to the defendant for its approval on the 8th of November, 1892, and that: the defendant, prior to the 15 th of November, 1892, accepted the same, and promised to execute it, but. afterwards neglected and refused to do'so for an unreasonable length of time, and until Hatch withdrew his offer to purchase. Though the record is somewhat voluminous, the case rests in a small compass. It is not claimed by the learned counsel for the plaintiff in error that the plaintiff at any time found a purchaser for the land on the terms specified at the time the land was put into his hands for sale. The lengthy correspondence carried on between the parties shows that a sale upon any other terms was subject to the defendant’s approval. The plaintiff’s contention is that he sold the land to Hatch, and that the defendant, by and through its agent, one Murdock, accepted the terms and approved the sale prior to the 15th of November, 1892, the date on which the plaintiff’s authority to sell the land terminated. Hatch’s proposition to purchase was in writing in the form of an agreement to be signed by the defendant, but which Hatch did not sign. The plaintiff claims that Murdock, acting as agent for the defendant, approved and accepted this agreement, though he did not sign it. Unless the plaintiff can maintain this claim, he has no cause of action, for it is quite clear from the pleadings and evidence that neither this nor any other sale of the property negotiated by the plaintiff was ever accepted by the defendant, or any other person authorized to act for it, prior to the expiration of the plaintiff’s authority. The plaintiff relies exclusively on the alleged 882 sale to Hatch, and. insists that he was prepared to prove, and offered to prove, that Murdock did approve and accept for the defendant the terms of sale agreed upon between the plaintiff and Hatch, and that the court erroneously excluded this evidence. Whatever the fact may have been, the record does not support this contention. On this subject the record discloses that while the plaintiff was on the stand as a witness, the following-proceedings took place: “Q. You also stated that on November 13tb Mr. Murdock returned in the afternoon to your office? A. I did. Q. And you banded bim the proposed contract with Mr. Hatch? A. 1 did. (Plaintiff offers to prove by his witness the conversation between him and Mr. Murdock relating to the contract, which conversation was had at St. Louis on November 14, 1892, but, defendant objecting, the court sustained the objection, and refused to allow plaintiff to testify to any conversation between him and said Murdock on November 14th, save such as related to the transmission of the contract from St. Louis to Port Henry, to which action of the-court in so ruling plaintiff then and there duly excepted.)” It will be observed that all that the plaintiff offered to prove was “the conversation between him and Murdock relating to the contract.” This offer was not accompanied by any statement as to what that conversation was, or that it was material to any issue then being tried. The insufficiency of the exception is rendered apparent by a single consideration. If this court should reverse the case because the witness was not permitted to state the conversation, what is there in this record to show or suggest that upon another trial, when the witness is allowed to state the conversation, a single word of it will be material to the case or admissible in evidence? The offer to prove the “conversation,” without some statement as to what it was, and showing its materiality, was too general to be made "the foundation of a valid exception. The rule is well settled that the bill of exceptions must show the materiality of the evidence which was tendered and rejected. The evidence rejected, or a statement of what it tended to prove, must appear in the bill of exceptions. Packet Co. v. Clough, 20 Wall. 528; Railway Co. v. Smith, 21 Wall. 255; Thompson v. Bank, 111 U. S. 529, 4 Sup. Ct. 689; Clement v. Packer, 125 U. S. 309, 8 Sup. Ct. 907; Patrick v. Graham, 132 U. S. 627, 10 Sup. Ct. 194; Lyon v. Batz, 42 Mo. App. 606; Bener v. Edgington, 76 Iowa, 105, 40 N. W. 117. Moreover, it does not appear from the record before us that Murdock was the agent of the defendant for the purpose of selling the land, or that he had any authority to approve or-confirm any sale.thereof made by the plaintiff. It results that the circuit court did not err in directing the jury to return a verdict for the defendant, and its judgment is therefore affirmed.