author: FOX, P. J.

text:
    NATIONAL EXCHANGE BANK, Appellant, v. KILPATRIC.
    Division Two,
    May 14, 1907.
    1. PLEDGE: Request to Sell Collateral: Pledgee's Loss. Where defendant gave her accommodation note to a bank and secured its payment by pledging certain other bank stock as collateral security, and thereafter, when the collateral stock was worth par, directed the bank to sell it and credit the proceeds on the note, and the bank failed to do so, and afterwards the stock became worthless, the bank, and not defendant', should bear the loss, and the defendant when sued on the note by the bank will be discharged to the extent he was injured by the bank’s failure to sell the collateral.
    2. -: -: -: Payment. Where the pledgor directs the pledgee to sell the collateral and apply the proceeds on the debt, or permit him to sell it, and the pledgee refuses or neglects to do either, the pledgee cannot escape the loss resulting from a failure to sell, by the fact that the pledgor did not pay the debt. Such a direction or request was not a demand or request that the pledgee surrender the collateral to the pledgor, and hence he was not required to make payment before it became the pledgee’s duty to make the collateral available for the payment of the debt.
    Appeal from Texas Circuit Court. — Eon. L. B. Wood-side, Judge.
    Affirmed.

      Sebree é Farrington and George Pepper dine for appellant.
    One who pledges certificates of stock, notes or other obligations as collateral security has no right to their possession or to sell or dispose of them until he has paid, or offered to pay, the debt for which they stand pledged. Schaaf, Adm., v. Fries, 90' Mo. App. 3; Doak v. Banks, 6 Ired. (N. C.) 309; Durant v. Einstein, 35 How. P. 223; McClintock v. Bank, 120 Mo. 127; Tally v. Friedman’s Savings Co., 93 U. S. 321. Defendant cannot complain that the stock of the Thayer Hardware Company did not bring more without some allegation that plaintiff was negligent in selling* the same, or was guilty of some fraud in connection therewith. McClintock v. Bank, 120- Mo. 127. The negligence of the holder of the collateral security, where it depreciates in value or' is lost, must be alleged and proved, as the pledgee is only liable for reasonable care as to the same. Bank v. Blackwelder, 81 Mo. App. 428.

      A. H. Livingston for respondent.
    (1) It is not disputed that the $5,100 of the Oregon County Bank stock could have been sold at par; that defendant’s agent asked to sell it at such price and apply it on the note, and that plaintiff1 refused to permit this to- be done; and by reason of such refusal the whole amount thereof was lost. Respondent’s contention is, that plaintiff bank is responsible for this amount. State Bank of St. Louis v. Bartle, 114 Mo. 276; Brandt on Suretyship and Guaranty (2 Ed.), sec. 440. (2) The judgment is manifestly for the right party. Even if it could be contended that the judgment for defendant was based upon a wrong theory yet if the judgment is sustained upon any ground it will not be reversed. The evidence shows clearly without one word of contradiction, or even an attempt to do so,- that the notes from beginning to end were executed by the defendant and her mother solely as an accommodation of the Central National Bank and the plaintiff bank. It is not even contended that they ever received one cent of consideration, or that they ever paid one cent on the note in interest or otherwise; that the interest on the notes was all the time paid by dividends on the bank stock, and the whole affair was beyond question or doubt simply to accommodate the banks until they could wind up their business at Thayer through the Oregon County Bank. On this state of facts and defense made, defendant was entitled to judgment even if she had failed in the one sustained by the court. Turner v. Overall, 165 Mo. 197.
   FOX, P. J.

This cause is now before this court upon appeal by the plaintiff from a judgment in the Texas Circuit Court in favor of the defendant, Lurah T. Kilpatric. The suit was predicated upon a promissory note executed by Lürah. T. Kilpatric and Nancy E. Sitton for the sum of $5,200. The petition is in the ordinary form declaring upon a promissory note and there is no necessity for reproducing it here. To this petition the defendants interposed the following answer:

“Defendants, for amended answer to plaintiff’s petition, admit the execution and delivery of the note sued upon in this action.
“For further answer, defendants say that the note sued upon was given and executed by them, at the instance and request of plaintiff and for its accommodation, and that no consideration whatever passed to- defendants for the same; wherefore, defendants pray judgment with costs.
“Defendants, for further answer to plaintiff’s petition, say that in the year 1897, T. J. Boyd & Co. executed a note to the Central National Bank of Springfield, Mo., for eleven thousand dollars, and to secure the payment thereof delivered to said bank as collateral security five thousand dollars Alton Bank stock, sixty-six hundred dollars Oregon County Bank stock, four hundred dollars Thayer Canning Company stock, and four thousand dollars Thayer Hardware Company stock; that soon thereafter said T. J. Boyd & Co. failed; that the said Central National Bank disposed of the Alton Bank stock for thirty-five hundred dollars and gave credit therefor on said Boyd & Co. note, leaving a balance due of seventy-five hundred dollars; that after the failure of said Boyd & Co., as aforesaid, the said Central National Bank requested defendants to execute their note for said sum of seventy-five hundred dollars in lieu of and in place of the said Boyd & Co. note, and allow the sixty-five hundred dollars Oregon County Bank stock to be issued to them and still to allow said stock to remain as collateral security, together • with the four thousand dollars Thayer Hardware Company stock and the four hundred dollars Thayer Canning Company stock, for the payment of said note of seventy-five hundred dollars; that under these terms and conditions defendants executed said note at the instance and request and for the accommodation of said Central National Bank; that the stock in the Oregon County Bank, while being in defendants’ names, was actually held and controlled by the said Central National Bank, and that all dividends thereon and assets therefrom were received by said Central National Bank; that said contract and agreement was made between said bank and defendants in order that it might be enabled to get the said Boyd & Co. note out of the past due files, so that the amount thereof might be used as a live asset in said bank; that after the execution of said note as aforesaid, by defendants, said Central National Bank sold fifteen' hundred dollars of said Oregon County Bank stock, and gave credit therefor on said note of seventy-five hundred dollars, executed to it by defendants as aforesaid; that defendants executed to said bank a renewal note for fifty-one hundred dollars and secured the same by depositing the collateral securities as aforesaid with said Central National Bank. And defendants further say that they are informed and believe that some time in the year 1898 the said Central National Bank was merged into the National Exchange Bank, the plaintiff herein; that by reason of said merger as aforesaid this plaintiff came into possession of the fifty-one hundred dollar noté executed by defendants to said Central National Bank, together with all of the above-mentioned stock deposited as collateral security for the payment of said note, in all amounting to ninety-five hundred dollars; that after said plaintiff had come into the possession of said note and collateral security, and about eight months after the maturity of said note, these defendants, at the request of plaintiff and for its accommodation, executed to plaintiff the fifty-two hundred-dollar note now in suit, and deposited as collateral security for the payment thereof the four thousand dollars Thayer Hardware Company stock, four hundred dollar Thayer Canning Company stock, and the fifty-one hundred dollars Oregon County Bank stock, hereinbefore mentioned; that no consideration whatever passed to defendants for the execution of said note and for the deposit of said stock as security therefor; that after said note was executed to plaintiff by defendant as aforesaid, plaintiff sold the four thousand dollars Thayer Hardware Company stock, at par value, and that no part of the proceeds of the sale of said stock was ever credited upon said note, but that plaintiff wrongfully and without authority converted the proceeds of the sale of said stock to its own use. "Wherefore, defendants pray that plaintiff be required to make an accounting to them for the amount realized from the sale of the said Thayer Hardware Company stock, and the disposition of the other collaterals aforesaid, and that upon such accounting defendants have judgment against plaintiff for the amount of the proceeds found to have been received by it for the sale of said stock and other collaterals aforesaid and not credited upon said note, and for all proper relief.
“Defendants further say that while plaintiff held the Oregon County Bank stock as aforesaid as collateral security for the payment of said note, they had several offers to sell said stock at par value of fifty-one hundred dollars, and thereupon requested said plaintiff to sell said stock or permit defendants to sell said stock and apply the proceeds of the sale thereof toward the payment of said note, which plaintiff refused to do; that said stock has now become worthless, and by reason of plaintiff’s refusal to sell or permit the same to be sold these defendants have been damaged in the sum of fifty-one hundred dollars, for which they ask judgment against plaintiff, with costs of this suit.
“Defendants further state that in the year 1898 the said Oregon County Bank passed into the hands of a receiver, and that at said time it owed this plaintiff twenty-eight thousand dollars and owed depositors and other creditors about thirty-five thousand dollars; that said Oregon County Bank was possessed of property and assets amounting to one hundred thousand dollars; that before the appointment of the receiver of the said Oregon County Bank as aforesaid, said Oregon County Bank had turned over to this plaintiff as collateral security for the payment of its debt to said plaintiff about fifty thousand dollars’ worth of its assets to secure the payment of its said debt, which said assets plaintiff has never accounted for to the stockholders of said Oregon County Bank or the receiver thereof; that after the appointment of the receiver of said Oregon County Bank as aforesaid, said receiver, by an order of the circuit court of Oregon County, Missouri, made therein approving the same, made an agreement with said plaintiff, whereby plaintiff took possession of all the assets of the said Oregon County Bank and was to pay out of the collections of said assets its debt of twenty-eight thousand dollars, and other debts and liabilities to go to the depositors and other creditors of said Oregon County Bank, amounting to thirty-five thousand dollars, making a total liability of said Oregon County Bank, which plaintiff was to pay, of sixty-three thousand dollars, and, after the payment of the said debts aforesaid, plaintiff was to turn over to the stockholders of said Oregon County Bank the balance of said assets, and that said assets of said bank have never been turned over to the stockholders by plaintiff. ■ Defendants further say that said Oregon County Bank was capitalized at.ten thousand dollars, of which fifty-one hundred was in the names of these defendants, and deposited as collateral security for the payment of the note in suit. And defendants say that they are entitled to a fifty-one hundredth part of the sums of money in the hands of plaintiff after the payment of its debt aforesaid and the payment of the depositors and other creditors of said Oregon County Bank, and that the amount to which they are entitled is about eighteen thousand dollars. Wherefore, defendants pray that plaintiff be required to make an accounting as to all the assets received by it of the Oregon County Bank and the disposition thereof; thatupon such accounting, after the credit of the amount of the debt due to plaintiff from the said Oregon County Bank and the payment of all the depositors and other creditors of said bank, defendant^ have judgment against plaintiff for a fifty-one'hundredth part of all money received by it in excess of the aforesaid debts and belonging to the stockholders of said Oregon County Bank, and for all proper relief. ’ ’

The reply of the plaintiff was in effect a general denial of the allegations of the new matter set np in the answer.

This canse was originally brought in Howell county, Missouri, but the venue of said cause was changed by order of court to Texas county where the cause was finally disposed of. The testimony introduced upon the trial of this cause substantially tended to prove about the following state of facts:

In 1897, T. J. Boyd & Company was a mercantile company at Thayer in Oregon county. The Bank of Alton was a bank located in Alton in Oregon county and the Oregon County Bank was a bank of ten thousand dollars capital stock located at Thayer, Oregon county, Missouri. The Central National Bank was a bank located at Springfield, Missouri, and was after-wards merged with or absorbed by the National Exchange Bank, the appellant here. In 1897 the firm of T. J. Boyd & Company failed and made an assignment. At the time of the failure of this firm the Central National Bank held its note for eleven thousand dollars and collateral for its security as follows: Five thousand dollar stock in the Bank of Alton, six thousand six hundred dollar stock in Oregon County Bank, four thousand dollar stock in Thayer Hardware Company and four hundred dollar stock in a canning company at Thayer, Mo. All these securities were assigned by Boyd & Company to the Central National Bank as collateral for the eleven thousand dollar note. After the failure of Boyd & Company, the cashier of the Central National Bank, doubtless with a view of holding the Oregon County Bank intact (however, this does not clearly appear from the disclosures of the record), arranged with the defendants, Lurah T. Kilpatrie and her mother, Nancy E. Sitton, to execute their note in lieu of the note of Boyd & Company and have the stocks of the different corporations re-issued to them, but all to be held by the Central National Bank.’ This was done without any consultation with Boyd & Company. So far as the disclosures of the record are concerned it seems that neither the defendant, Lurah T. Kilpatric, nor her mother, Mrs. Sitton, had but very little to do with the transaction, except to sign their names to the note and transfer stock so that the Boyd note might be kept up as a live asset of the bank. By this arrangement the Central National Bank controlled a large part of the stock in the Oregon County Bank. The Central National Bank sold the Alton Bank stock for five thousand dollars and gave credit on the Boyd note and when the defendants executed the first note in lieu of the Boyd note the amount was for seven thousand five hundred dollars. It was-understood between the Central National Bank and Captain Sitton, husband of Mrs. Sitton and father of Mrs. Kilpatric, that he sell one thousand five hundred dollars stock in the Oregon County Bank, which would leave the Central Bank still holding five thousand one hundred dollars, which was a controlling interest therein. The one thousandfive hundred dollars in stock of the Oregon County Bankwassoldand the seven thousand five hundred dollar note credited with the amount thereof. Then the defendants executed their note for six thousand dollars, and on this note appears a credit of eight hundred dollars, which seems to have been placed there out of a balance realized from the Thayer Hardware stock after discharging another Boyd note they held, but in no way connected with this transaction. Whether this credit was placed on the note by the Central or Exchange Bank does not appear. About this time or soon after the Central National Bank was absorbed or its business taken over by the appellant, Mr. Sanford, cashier of appellant bank, went to Thayer and obtained a renewal of the note for five thousand two hundred dollars, being the note sued on, and delivered np the last note given to the Central National Bank. Plaintiff had also the five thousand one hundred dollars of the Oregon County Bank stock, four thousand dollars of the Thayer Hardware stock and four hundred dollars Canning stock still assigned to it as collateral for the note sued on. Captain Sitton, the husband of Mrs. Sitton and father of Mrs. Kilpatric, testified in this cause and he states that he was acting as the agent of the defendants and requested the plaintiff to sell the Oregon County Bank stock, or to the same effect, to give him permission to sell it and apply it to the payment of the note in suit, and that the Exchange Bank, the plaintiff in this cause, refused to take any steps towards the sale of the stock or to permit the agent of the defendants to do so. Sometime afterwards this bank stock, which was held by plaintiff as collateral, became worthless. At the time the sale of the stock was suggested to the plaintiff and a request made to permit its sale and apply it to the payment of the note, the testimony is undisputed that the stock was worth one hundred cents on the dollar, and would have brought its par value. The Thayer Hardware stock was sold and it is admitted by plaintiff, that the sum of two thousand dollars was realized from such sale.

At the close of the evidence the court gave numerous declarations of law; however, we deem it unnecessary to burden this opinion with a reproduction of them. This cause was submitted to the court sitting as a jury and the issues were found for the defendant. Timely motions for new trial and in arrest of judgment were filed and by the court overruled. Judgment was rendered for defendant in accordance with the finding of the court, and from this, judgment the plaintiff prosecuted this appeal and the record is now before us for consideration.

OPINION.

The record in this canse discloses but one legal proposition for our consideration, that is, in which the propriety of the action of the trial court is challenged in allowing the defendant credit on the note in suit, for the five thousand' one hundred dollars stock in the Oregon County Bank, which was held by the plaintiff, as collateral security and while being so held became worthless.

It is practically conceded that there was, two' thousand dollars realized from the Hardware stock, which was held by the plaintiff as collateral; therefore, our attention will be directed to the correctness of the action of the court in allowing credit upon the note for the Oregon County Bank stock. The trial court in effect held that as the plaintiff permitted the Oregon County Bank to become insolvent and the stock held by it as collateral security for the note sued on to become unavailable, the plaintiff should stand the loss of such stock.

We have carefully read in. detail the testimony as applicable to this subject, and there is no escape from the conclusion that, if plaintiff had undertaken to sell this stock at the time suggested by Captain Sitton, it would have realized its full value and been amply sufficient, together with the Hardware stock, to have fully satisfied this note. The testimony of Captain Sitton, who was acting as agent of his wife and daughter, who had executed this note, stands absolutely without any contradiction, and in our opinion his testimony can only be treated as a direction to the plaintiff who held this stock as collateral to dispose of it, and informed them that it could be sold for one hundred cents on the dollar. Plaintiff offers no reason why the suggestion to dispose of this stock was not followed, and there is no valid reason assigned why the stock was not sold. Plaintiff simply held it as collateral, and it was its plain duty when the defendants, through their agent, Captain Sitton, insisted that the stock should he sold and applied to the payment of this note, to do so. It does not answer the contention of respondent for appellant to say that the only way in which Captain Sitton would have been authorized to have sold this stock was to first tender the amount due upon the note. His testimony does not bear out the insistence of the appellant that the defendants were trying to get possession of the collateral. His testimony, when reasonably construed, simply means that the collateral would remain in the possession of the plaintiff and he simply asked permission to contract for the sale of it and the money realized from such sale to be turned over to the plaintiff and applied to the payment of this note and the stock transferred to whomsoever it might be sold. In other words, the testimony of Captain Sitton cannot be regarded as wanting to obtain the possession of the stock without any sale of it, but when fully considered it was a clear direction to those who had a right to make directions in relation to a collateral that belonged to them, that it be sold when it would bring its full value. Plaintiff refused to take any steps towards the sale of this stock when its full value could have been realized and defendant’s obligation fully satisfied. This stock afterwards becoming worthless, in our opinion the trial court properly and correctly held that the plaintiff should stand this loss.

. The law upon this subject is very correctly stated in 22 Am. and Eng. Ency. Law (2 Ed.), 899, where it is said in the text and fully supported by the cases cited in the notes, that “it is well settled that when a chose in action, such as a bond, note, or accepted order on a third person, is transferred and delivered to a creditor as collateral security, it is the duty of the pledgee to use reasonable care and diligence to make such collateral available; that he is bound to use proper exertions to render the collateral effectual for the purpose for which it was pledged; that if necessary he must bring an action against the maker of the collateral; and, that if, through his negligence or wrongful act or omission, the collateral is lost, he is accountable and liable to the pledgor-in the same manner as a pledgee of goods and merchandise is liable to the pledgor if they are lost or destroyed through the pledgee’s failure to give them the necessary protection and care.” [Hanna v. Holton, 78 Pa. St. 334; Bank v. Thompson, 71 Fed. 113.]

In State Bank of St. Louis v. Bartle, 114 Mo. 276, it was expressly ruled that it was the duty of a party holding a collateral as security to carefully and faithfully perform all acts necessary to make the collateral available, and that it was a duty owed to the surety, and, failing in it, by which the collateral is lost, the surety will be discharged to the extent he is thereby injured. [Taylor v. Jeter, 23 Mo. l. c. 250; Brandt on Suretyship (1 Ed.), secs. 384-387; Kemmerer v. Wilson, 31 Pa. St. 110; Pickens v. Yarborough’s Adm’r, 26 Ala. 417; Grisard v. Hinson (Ark.), 6 S. W. 906.]

The learned text-writer, Mr. Brandt, on Surety-ship and Guaranty (1 Ed.), sec. 384, thus states the law applicable to this subject: “If the principal places in the hands of the creditor, as collateral security for the debt, an obligation of a third person, the creditor is, without any special agreement to that effect, bound to use due diligence to collect the same, and to charge all the parties thereto, and if anything is lost on account of his failure to use such diligence, not only the surety but the principal also is discharged to the extent that he is injured. With reference to this it has ben said that: ‘ The assignor of collaterals parts with his control over them, and the assignee should be bound to use proper exertions to render them effectual for the purpose for which they were assigned. The principle is that when a right of action or á judgment is transferred by a debtor to his creditor, to secure the debt, or as collateral security, ordinary diligence must be used to make it available, and if a loss occurs by negligence, even passive negligence, which is unreasonable and results in loss, it will be a good defense to a suit on the original debt.’ It has also been said that ‘the necessary care and attention should be bestowed to preserve the value of whatever is thus voluntarily, and with a view to one’s own interest, taken under his control.’ It has been held that the question ‘what is due diligence’ is, when the facts are ascertained, one of law; and where a note was due when the creditor took it as collateral, and the maker was then solvent, but the creditor did not bring suit on it for three months, when the maker had become insolvent, it was held, that this was such negligence as charged the creditor with the loss of the note.”

While it may be said that the plaintiff in this cause had absolute dominion over this bank-stock as collateral, as long as the note of defendants remained unpaid, yet it by no means follows that the defendants, who are the real owners of the collateral, are absolutely deprived of all interest in it, and it was the plain duty of the plaintiff in this cause who could only be legally interested in the collateral to the extent of having the proceeds of it applied to the payment of the note in suit, and the Oregon County Bank being solvent, and the pointed demand being made by the defendants, who were particularly interested in this collateral, that it be sold and the proceeds applied to their note, in our opinion it was the plain duty of the plaintiff to then and there sell this stock for its par value and apply the proceeds to the payment of the note, and their failure to do so, and the bank subsequently becoming insolvent, and the stock worthless, in our opinion constitutes such negligence as fully warranted the trial court in crediting the amount of such loss upon the note.

We have carefully analyzed this record and the judgment of the lower court was clearly for the right party, and it should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, J.

license: Public Domain

text:
    CALISTA T. SAWYER, Administratrix of Estate of W. G. Sawyer, v. ALTEN M. WALKER, Appellant.
    Division Two,
    May 14, 1907.
    1. RECEIPT: Commissions: False Representations. Receipts given by plaintiff to defendant, a real estate agent, with whom plaintiff was associated in the selling of certain lands under an agreement that he was to have one-half the agent’s commissions, obtained by false representations that the amount named in the receipts was one-half of all the commissions defendant had received, and the acceptance of the amount named and the retention thereof, are no bar to an action for the balance actually due.
    2. -: -: -: Fraud and Deceit: Contract. In an action for fraud and deceit, it is not necessary to set out or plead a contract between plaintiff and defendant.
    3. -: -: -: Acceptance. Where plaintiff testified that he accepted defendant’s proposition to receive one-half the commissions as his compensation for furnishing buyers for lands which defendant had for sale, and went to work under it to procure the purchasers, that is sufficient to show his acceptance of the proposition.
    4. -: -: -: -: In Writing. An acceptance in writing of the proposition contained in a letter, which set forth the same, verbal agreement under which plaintiff had been at work for some time, was not necessary to his suit for fraud and deceit growing out of defendant’s failure to keep the contract. Acting upon it and doing the things it stipulated was a sufficient acceptance.

      5. FRAUD AND DECEIT: Receipt. Fraud vitiates the most formal documents. Receipts though expressing to be in full of all demands have no contractual elements, but may be explained by parol, and are at most only prima-facie evidence of the facts therein stated.
    6. -: -: Varying Written Contract. In a suit for fraud and deceit, evidence to vary the terms of the written receipt, obtained by • fraudulent representations as to the amount due the maker, is competent; and the rule that parol evidence is not admissible to vary the terms of a written contract has no application in such case. Evidence that plaintiff, who was to receive one-half of all commissions received by defendant for sale of land, entered upon a compromise agreement to accept $2,500 as a settlement of his share of the commissions in ignorance of the fact that defendant had received $12,500, and that defendant had sedulously concealed from him that he was receiving that amount, and letters between him and the vendors • tending to establish the concealment, are competent evidence.
    7. -: Commissions: Kindred Judgment. The rights of a party to the suit on trial could not have been adjudicated by a judgment in another to which he was not a party, even though that judgment grew out of the same matters brought into litigation in this. Defendant was agent for the sale of a large tract of land, and proposed to give plaintiff one-half the commissions received by him for any sale to persons plaintiff would produce, and that the net cash price was to be $80,000. Plaintiff produced the purchasers at that price, and received $2,500 for his share of the commissions. Afterwards it developed that defendant had received $12,500 in commissions, and the purchasers sued defendant in the Federal court and obtained judgment for $9,000, based on the representations by plaintiff to them that neither he nor defendant was to receive any commissions if the land was sold for $80,000; but plaintiff was not a party to that suit, in which he testified, as he did in this, that those representations were the same that defendant had made to him. Held, that the trial court committed no error in excluding the judgment in that case, and that judgment did not bar his right to recover the full half of $12,500 received by defendant, although the defendant pleaded his testimony in that case as a bar to this and as being false.
    -8. - — : Submitting Issues to Jury: Shifting Position. Where the court gave to the jury an instruction for defendant which submitted the identical question which he now claims was a question of law for the court, he is bound by that action, and cannot now shift his position and convict the trial court of error because it adopted his theory of the ease.

      Appeal from Boone Circuit Court. — No». A. N. Waller, Judge.
    Aeeibmed.

      Pearson & Pearson-, E. W. Hinton and G. J. Walker for appellant.
    (1) The petition does not state a cause of action, (a) It alleges there was a settlement in full by defendant, of the contract made by him with plaintiff, (b) There is no contract set out or pleaded in either count of plaintiff’s petition. A contract, to form- the basis of a cause of action, must be pleaded, or set out, either in the language of the contract, or stated according to its legal effect. Pye v. Eudder, 7 Mo. 548; Hill v. Barrett, 14 B.. Mon. (Ky.) 83; Muldro v. Caldwell, 7 Mo. 563; Moore & Hunt v. Platte County, 8 Mo. 472; Jones v. Louderman, 39 Mo. 287; Page v. Freeman, 19 Mo. 421; Langford v. Sanger, 40 Mo. 165; Garrison v. Transfer Co., 94 Mo. 138; Blaine v. Knapp Co., 140 Mo. 247; Whitemore v. . Crouch, 150 Mo. 681; Anderson v. Gaines, 156 Mo. 669; Long Bros, v. Armsby Co., 43 Mo. App. 261; Currell v. Eailroad, 97 Mo. App. 98. First. The letter alleged to be attached to the petition is not a part of the petition, and cannot be examined or considered, in determining the sufficiency of the pleadings. Yaughan v. Daniels, 98 Mo. 234; Pomeroy v. Fullerton, 113 Mo. 453; Poulson v. Collier, 18 Mo. App. 605; Merrill v. Central Trust Co., 46 Mo. App. 242; Chambers v. Carthel, 35 Mo. 375; Phillips v. Evans, 64 Mo. 22; State v. Samuels, 28 Mo. App. 652. Second. There is not only no proposition set out in the petition, but there is no acceptance pleaded, if the contents of the letter was known or disclosed. The rule of law is well settled that an acceptance, to close a contract on a proposition and bind the parties, must be absolute, • unambiguous, unequivocal, and in exact accordance with the offer. It must not vary from the offer, either by way of omission, addition or alteration. If it does, neither party is bound. Scott v. Davis, 141 Mo. 225; Greene v. Cole, 103 Mo, 76; Taylor v. Yon Schrader, 107 Mo. 225; Arnold v. Cason, 95 Mo. App. 437. An uncommunicated intention to accept a proposition does not form a binding contract. Cangass v. Mfg. Co., 37 Mo. App. 307; Coleman v. Roberts, 1 Mo. 101; Bruner v. Wheaton, 46 Mo. 366; Lee v. Dood, 20 Mo. App. 284. (c) There is no statement in the petition of any obligation on the part of either plaintiff or defendant to either one or the other; neither is there such a statement of facts that any such obligations can be inferred, (d) There is no averment in the petition that plaintiff kept or performed any or all of the conditions and provisions of the contract to be kept and performed on his part; or that he tendered the performance of same; and that defendant failed to perform the saíne on his part. Plaintiff should allege and prove a substantial compliance with the provisions of the contract on his part, and a breach of the same on the part of the defendant, to entitle him to recover. Dubbins v. Edmonds, 18 Mo. App. 314; Fairbanks v. Delissa, 36 Mo. App. 719; Beckman v. Ins. Co., 49 Mo. App. 607; Basye v. Ambrose, 32 Mo. 484. (2) There is no evidence to' support the verdict on either count of the petition; and, for this reason, the cause should never have been submitted to the jury. There is absolutely no proof that the proposition in the letter of January 30, 1902, was accepted by the plaintiff; and, there was, therefore, no proof of a contract. (3) The court committed error in the admission of testimony offered on the part of plaintiff, which tended to vary and changed the terms of the alleged written contract. (4) The court committed error in the rejection of legal and competent testimony’ offered' by defendant. In particular, the opinion of the judge and the judgment of the United States Circuit Court, in the case of The Pike County Land Co. v. A. M. "Walker. (5) The court committed error in giving instructions one, two, three, four and five, asked by plaintiff, (a) It is the duty of the court to ascertain and interpret the meaning and legal effect of a written instrument; and this duty cannot be shifted by the court to the jury in the shape of questions of fact. State to use v. Lefaivre, 53 Mo. 471; Ford v. Dyer, 148 Mo. 541; Chapman ,v. Railroad, 114 Mo. 551; Edwards v. Smith, Admr., 63 Mo. 127; Fruin v. Railroad, 89 Mo. 404; Matthews v. Donahy, 26 Mo. App. 661; State to use v. Donnelly, 9 Mo. App. 526; Falls Wire Man. Co. v. Broaderick, 12 Mo. App. 385; Brooks v. Ins. Co., 11 Mo. App. 350; Fugate v. Carter, 6 Mo. 273. (b) What will amount to an acceptance of a proposal, and. constitute a contract between the parties, is a question of law for the court. Lancaster v. Elliott, 28 Mo. App. 92; Wheaton v. Aimes, 28 Mo. App. 248; Falls Wire Mfg. Co. v. Broaderick, 12 Mo. App. 385 ; James & Son v. Fruit Jar Bottle Co., 69 Mo. App. 213. In both instructions, number one, and number two, the court put it up to the jury to determine whether the acceptance pleaded was unequivocal, unconditional, and' without any variance between it and the proposal. Strange v. Crowley, 91 Mo. 294; Taylor v. Yon Schraeder, 107 Mo. 225; C’angass v. Mfg. Co., 37 Mo. App. 307; Lungstrass v. Ins. Co., 48 Mo. 204.

      Matson S May and N. T. Gentry for respondent.
    (1) The petition more than states a cause of action, and portions of it might be left for the reply. “The contract not being the foundation of an action for false representations and deceit, need not be pleaded as if the action was based thereon, but so much should be set forth as will describe the wrong sought to be redressed.” 8 Am. and Eng. En. of Pleadings, 909; Lambert v. Jones, 91 Mo. App. 288; Corder v. O’Neil, 75 S. W. 764; Sallee v. McMurry, 113 Mo. App. 253. “If debtor fraudulently induces creditor to accept less than full amount due, suit at law will be maintained for the balance.” 14 Am. and Eng. Ency. Law (2 Ed.), 187 and 188, and cases cited in note 5 on page 147; Parker v. Marquis, 64 Mo. 38; Nauman v. Oberle, 90 Mo. 666. “Acquittances and releases upon fraudulent representations are invalid.” Houts v. Shepherd, 79 Mo. 141; “Winter, etc., v. Railroad, 160 Mo. 189; Hamlin v. Able, 120 Mo. 189 ; Hunt v. Searcy, 167 Mo. 174. “Part payment constitutes no defense to payment of balance due, and you need not tender back amount paid.” Goods on v. Accident Assn., 91 Mo. App. 351; Willis v. Gammill, 67 Mo. 730; sec. 624, R. S. 1899. (2) The evidence shows conclusively an acceptance, work thereunder, and the successful results to appellant. Ens-worth v. King, 501 Mo. 477; Fisher Leaf Co. v. Whipple, 51 Mo. App. 181. Acceptance was clearly pleaded and proven in this case. American Publishing, etc., Co. v. Walker, 87 Mo. App. 503; Hauck Clothing Co. v. Sharp, 83 Mo. App. 390; Arnold v. Cason, 95 Mo. App. 426; Stewart v. Glenn, Admr., 58 Mo. 589. (3) The court did not commit an error in the giving" -of instructions. St. Joseph Union Depot Co. v. Railroad, 131 Mo. 311; Houts v. Shepherd, 79 Mo. 141; sec. 2063, R. S. 1899. (4) Plaintiff, in reply, may allege fraud in obtaining release, set up in answer. Sec. 654, R. S. 1899; Cardwell v. Stewart, 91 Mo. App. 595; Courtney v. Blackwell, 150 Mo. 278; Hancock v. Blackwell, 139 Mo. 453; Ireland v. Spickard, 95 Mo. App. 53.
   GANTT, J.

This is an appeal from the judgment of the circuit court of Boone county in favor of the plaintiff for $4,850: The action was one for damages for fraud and deceit growing out of certain contracts between the defendant and W. G. Sawyer for commissions on the sale of real estate. Since the commencement of this action, W. Gr. Sawyer has died testate and Oalista T. Sawyer has been substituted as his administratrix.

At the very threshold we are confronted with a motion to dismiss the appeal on the ground of the insufficiency of the abstract filed by the appellant in the cause. Owing to the fact that this motion was not filed until three days after the cause was set down for argument in this court, and was only brought to the attention of this court on the day the cause was argued, the motion was taken with the cause and the matters therein assigned can best be disposed of in the consideration of the case.

The petition in substance alleges that in November, 1901, while the plaintiff was a resident of the State of Minnesota, he met the defendant in Pike county, Missouri, and was informed' by the defendant that he was a real estate agent and had various tracts of land and farms in the States of Missouri and Illinois for sale, and thereupon negotiations were had between plaintiff and defendant whereby defendant agreed with plaintiff that if plaintiff would furnish defendant a customer or customers for any lands the defendant had for sale in said States, defendant would divide equally with plaintiff any commissions received for such sales at the time the deals were closed. This contract was reduced to writing in January, 1902. That in pursuance of said contract, plaintiff began negotiations with various parties to make sales of the land situated in Pike county, Missouri, of which the defendant was the agent and had the selling; that at the date of said contract, the defendant represented to the plaintiff that among other tracts of land which the defendant as agent had for sale, was one containing 6,760 acres, known as the Block land or tract, situated in the county of Pike, maps of which said land and advertising matter showing its position were shown by defendant to plaintiff, and defendant represented to plaintiff that said tract belonged to the Block Land and Farming Company, a corporation under the laws of Missouri; that defendant for the purpose of defrauding plaintiff out of-his compensation deceitfully, fraudulently and falsely represented to- plaintiff that he,-the defendant, was only to receive as commissions and compensations for the sale of said Block tract whatever sum he could sell the same for over eighty thousand dollars, whereas in truth and in fact he was to and did receive his commission for such sale all over sixty-seven thousand five hundred dollars, and the said tract was sold for eighty thousand dollars; that plaintiff believed and acted upon said deceitful and false representations so- made by defendant to the plaintiff and so believing and relying upon said representation and pursuant to and in carrying out in good faith his contract with the plaintiff in obtaining a purchaser therefor, plaintiff induced among others Charles'C. Weber and Elbert L. Carpenter, residents of the State of Minnesota, to negotiate with the defendant for the purchase of the Block tract of land, and on the 15th day of February, 1902, said Weber and Carpenter contracted for the purchase of said Block tract for the sum of $80,000, through the- instrumentality of plaintiff, with defendant as agent in charge of said land, and entered into a written contract for said sale, which was marked “Exhibit B” and filed with the petition; that at said time both said Weber and Carpenter were financially able and willing to purchase said land at the cash price of $80,000, and afterwards, to-wit, on the 28th day of February, 19.02, did pay or cause to be paid said sum of eighty thousand dollars to- the Block Land and Farming Company for said land; that in . pursuance of a secret understanding and agreement between the defendant and the said Block Land and Farming Company, the defendant was to and did on the said 28th day of February, 1902, receive as his compensation and commission for the making of said sale, the sum of twelve thousand five hundred dollars; that plaintiff was then and there entitled to one-half of said commission so received by defendant for the making of said sale, but that the receipt of said twelve thousand five hundred dollars by defendant was without the knowledge of plaintiff, and was not known by plaintiff until sometime thereafter, and that immediately upon discovery of such payment to and receipt by defendant, plaintiff demanded his just proportion thereof and employed attorneys to recover what he had been so defrauded of by defendant. That said sale was consummated in the city of St. Louis, and plaintiff was not present, but soon afterwards the defendant knowingly, willingly, deceitfully and fraudulently represented to plaintiff that he did not receive any compensation or commission for making said sale, and plaintiff being ignorant of the true facts and acting upon the said false and deceitful statement made by defendant as last aforesaid, agreed to accept of defendant for plaintiff’s services, one thousand five hundred dollars in cash and an additional sum of one thousand dollars to be paid plaintiff at a future date, and that while plaintiff was still ignorant of the true facts, to-wit, on the third day of April,- 1902, and while still believing and relying upon said deceitful representations, plaintiff received from defendant the said additional one thousand dollars and receipted to defendant in full for his compensation and commission. Wherefore, plaintiff alleges that he has suffered loss and been damaged by the defendant in the sum of $3,750, for which he asks judgment and for costs.

For another and second cause of action, plaintiff alleges the same contract for commissions, set forth in the first count made with the defendant about the 30th of January, 1902, and then alleges that the defendant represented to the plaintiff that he, the defendant, as agent had for sale another farm known as the Hart farm in Pike county, Missouri, said to contain 1,140 acres, which belonged to one Albert Bartlett of St. Joseph, Missouri; that defendant for the purpose of defrauding plaintiff, falsely, deceitfully, and fraudulently represented that he, the defendant, was to receive as commission for the sale of said Hart tract all that it could be sold for over twenty-three thousand dollars, when in truth and fact defendant had an agreement with Bartlett to receive as his compensation all that he could sell said farm for over and above twenty thousand dollars; that plaintiff was ignorant of the true agreement between Bartlett and defendant, and believed and relied upon said representation and in carrying out in good faith his part of contract between him and defendant, induced one R. C. Jefferson of the State of Minnesota, who was and is financially able to buy said Hart tract, and brought said Jefferson as a customer for said tract to the defendant and by virtue of plaintiff’s acts, the defendant as agent for Bartlett, on the first day of April, 1902, sold said Hart tract to said Jefferson for twenty-three thousand eight hundred dollars cash; that defendant’s true commission for said sale was three thousand eight hundred dollars, but defendant knowingly, falsely and fraudulently and for the purpose of defrauding and deceiving plaintiff represented to plaintiff that defendant only received as his commission on account of said Hart land sale, one thousand eight hundred dollars, and acting upon said representation, plaintiff settled with defendant upon that basis; that at said time, plaintiff was rightfully entitled to have been paid by defendant one thousand nine hundred dollars, one-half of the commission received by said defendant on account of said sale; that defendant only paid plaintiff eight hundred dollars, and practicing the deception and frauds aforesaid upon plaintiff, and plaintiff relying upon said false representations receipted in full to defendant for the commissions so due him about the third day of April, 1902. Wherefore plaintiff said he was damaged in the sum of one thousand one hundred dollars, and prays judgment in the aggregate on both counts for $5,850' and interest.

For answer the defendant filed first a general denial to each count and for further and separate answer defendant admitted that on the 15th of February, 1902, he was an agent of the Block Land and Farming Company, and had said Block tract of land for sale, and that on or about the 9th of January, 1902, he contracted with the plaintiff that if plaintiff would furnish him a customer who would purchase said tract at and for eighty thousand dollars in cash, he would give plaintiff two thousand five hundred dollars in cash in full for his commission for his services. He admits that- plaintiff did introduce to defendant said Weber and Carpenter, who did on the 15th of February, 1902, enter into a contract with defendant as agent of the Block Land and Farming Company to purchase said land for eighty thousand dollars, and at the same time, requested and gave defendant an option to take a ten-thousand dollar interest in a corporation which they intended to organize, and give the defendant the exclusive sale of said land for a term of three years, which option defendant complied with and accepted in writing, and thereupon he immediately informed the plaintiff that he could not pay him the agreed sum of twenty-five hundred dollars in cash from said sale, and he would have to relinquish his claim on defendant for such sum and take a less sum, to-wit, fifteen hundred dollars, for his services and commission and one thousand dollars additional on thi sale of another piece of property on certain condition^. and that plaintiff agreed to the said change and modification of his contract with defendant and said modification was reduced to writing and signed by defendant and plaintiff, and is marked “Exhibit A” filed with defendant’s answer. Defendant further states that he paid plaintiff the fifteen hundred dollars and afterwards on the 3d of April, 1902, defendant settled with plaintiff and paid him in full for all services, and received from plaintiff a receipt in full, which receipt is attached to the answer and marked “Exhibit B.” Defendant further answering states that plaintiff in negotiating the sale of the said Block tract, fraudulently and falsely represented to the purchasers that eighty thousand dollars was the net cash price to the owners, and that in selling said tract at that price neither plaintiff nor defendant would receive any commission and neither of them would be reimbursed for bringing about this sale and purchase; that such representations were false, fraudulent and unwarranted and known to be so by the plaintiff, ' because at the time of making them, plaintiff had a contract with defendant to receive the sum of twenty-five hundred dollars as a commission for the sale of said tract for eighty thousand dollars. Defendant further states that he did consummate the sale of said Block tract upon the conditions above set forth to said Weber and Carpenter, who afterwards promoted and organized the Pike County Land Company, a corporation, to manage, operate and control said land; that defendant was paid by the Block Land and Farming Company twelve thousand five hundred dollars as commission for making such sale; that out of this sum defendant paid plaintiff the amount and sums of money contracted to be paid to him as above set forth; that afterwards the plaintiff informed the purchasers of the amount of the commissions defendant received and urged them to institute proceedings against defendant to recover said commissions, which the said Weber and Carpenter did' do by an action in the United States Circuit Court for the Northern Division of the Eastern District of Missouri, in which said suit the said plaintiff recovered a judgment against the defendant for nine thousand dollars, being the total amount of the commissions received by the defendant from the said Block Land and Farming Company, less thirty-five hundred dollars which he had expended in attempting to bring about the sale of said tract of land, and in said suit plaintiff testified that neither he nor defendant was to receive any commission if the said land was sold for eighty thousand dollars cash, and defendant now pleads plaintiff’s testimony as a bar to any right of the plaintiff to recover in this case:

Defendant further answering says that as agent for the owner, he had the Hart farm owned by Albert L. Bartlett, for sale as agent; that about the 9th of January, 1902, he did enter into a written agreement with the plaintiff that if he would furnish him a customer for said farm for twenty-five thousand dollars or more, he would give him for his services one-half of all they should receive for said farm over and above twenty-three thousand dollars, and afterwards, on the 28th of February, 1902, plaintiff and defendant changed and modified said agreement whereby the defendant, in consideration of plaintiff agreeing to take a less consideration than previously agreed upon in the sale of the Block tract of land, would give plaintiff one thousand dollars in addition to commission already agreed upon for the sale of the Hart farm; that plaintiff did furnish a purchaser for said farm, but that before buying the same, the said purchaser, R. C. Jefferson, insisted that the personal property then on the farm, appraised at fourteen hundred dollars, should be included in the sale of the farm at and for the price of twenty-five thousand dollars in cash, and that plaintiff contracted for the sale of said farm to include the said personal property for the sum of twenty-five thousand dollars, and assumed the responsibility of buying and paying the fourteen hundred dollars for said personal property. Defendant says defendant paid to plaintiff and plaintiff accepted and received from defendant and in full discharge of said agreement and of all commissions due and owing the plaintiff from the defendant arising from the sale of both the Block land and the Hart farm, fifteen hundred dollars, on the 28th of February, 1902, and twelve hundred dollars to A. L. Bartlett for said personal property and a balance of eighteen hundred dollars on the third day of April, ' 1902, and executed and gave his receipt in full for the same, whereby defendant was released from any and all obligations under and above his said agreement to pay plaintiff commissions for the sale of the said Block land and Hart farm.

For reply the plaintiff first denied all the new matter contained in the answer. In a general way he then admits the receipt of thirty-three hundred dollars from the defendant as evidenced by the two receipts "Exhibit A” and “Exhibit B” given by him to defendant and alleges that he had given defendant credit in his petition for said sums and then alleged that plaintiff’s signature and execution of the said receipts was obtained and said originals were agreed to by him upon the false, fraudulent and wilfully deceitful representa-, tions, knowingly made to him by defendant, that, the amounts named therein were all the sums due plaintiff by defendant as his share of the commissions growing out of said sales and said instruments were obtained as stated in plaintiff’s petition by fraudulent representations intentionally and knowingly made by defendant and acted upon by the plaintiff, plaintiff believing and relying upon said false and fraudulent representations and that said.receipts and so-called compromise agreement having been so fraudulently obtained are void and do not state the true agreement between plaintiff and defendant and constitute no valid release or discharge of plaintiff’s cause of action.

In addition to the admissions made in the answer of the defendant the evidence tended to show that the defendant was a resident of Louisiana, Missouri, and the plaintiff on the 4th of December, 1901, was a traveling commercial agent. On the day last mentioned the plaintiff and the defendant met each other while riding on the Burlington railroad. The defendant had been down to Annada with a man to show him a farm, spoken of in the pleadings and the evidence as the Hart farm, with the purpose of selling it to him. The defendant attracted the attention of the plaintiff by his praises of the said Hart farm and other tracts of land which he had for sale. After some conversation in regard to the properties which defendant had for sale, the plaintiff, on an invitation of the defendant, went to the defendant’s office in Louisiana, Missouri, and the defendant then described to plaintiff the Block and the Hart tracts of land and gave him, plaintiff, plats, circulars and prices in reference to the same. While plaintiff was a traveling salesman for a Harvesting Company at a salary of eighteen hundred dollars per year, he also had made some land deals for some wealthy citizens living in Minneapolis and St. Paul, and had been requested by some of his friends there to keep his eyes open for a good land trade. The plaintiff was so favorably impressed'with the description of the said Block and Hart farms, that he told the defendant that he believed he could sell the said farms, and the defendant thereupon offered the plaintiff inducements to quit his occupation as a traveling salesman and go out as agent of the defendant in the real estate business, promising to divide equally with the plaintiff any commissions which he might receive on account of any sales to any customers which plaintiff might bring or send to him for real estate which defendant had for sale. Upon the faith of this agreement, plaintiff began looking up purchasers . for said farms, and sometime thereafter brought the parties, Carpenter and Weber and Jefferson, to the defendant, and these parties subsequently bought the said tracts of land through the defendant of the owners thereof. The purchasers of the Block tract, Carpenter and Weber, paid eighty thousand dollars therefor, and Jefferson paid twenty-three thousand, eight hundred dollars for the Hart tract. The agreement of the defendant with the owners of the Block tract was that he was to receive all he could sell the land for above sixty-seven thousand five hundred dollars net to the Block Land and Farming Company; he was, however, to pay all expenses whatsoever, and receive nothing in the event that he made no' sale. The agreement with Mr. Bartlett, the owner of the Hart tract, was that defendant should have as commission all that he could sell the land for over and above twenty thousand dollars. About the first of April, 1902, defendant sold the land to Jefferson and received a draft for twenty-five thousand dollars, which he turned over to Bartlett, but Bartlett testified that he was only to have twenty thousand dollars of it. Bartlett testified that he sold the personal property on the farm to Jefferson for fourteen hundred dollars, and that the defendant gave him a check for fourteen hundred dollars. Bartlett thereupon gave the defendant five thousand dollars, and thereupon the defendant gave back a check for fourteen hundred dollars. Bartlett testified that Walker said that he was to divide commissions with the plaintiff Sawyer, but whether that was to be an equal division or not he did not know, but defendant requested him not to tell anybody exactly what the place was costing him. ‘ ‘ After the trade was made, he gave him a draft for twenty-five thousand dollars, and asked me if I would not give him a draft for five thousand dollars, and I told him yes; he said he wanted to make a settlement with Sawyer. We went.to the defendant’s office and he asked me to write two checks, one for two thousand dollars and the other for three thousand dollars; he said he kept two hank accounts and wanted to divide the deposits. He said he divided commissions with Sawyer. ’ ’ J eff erson said in his testimony as to the pur_ chase of the Hart farm, he made a proposition to give twenty-five thousand dollars even cash for the farm and the personal property on it. They went down to the farm, and there was more personal property than the defendant and the plaintiff thought there was and they objected to throwing that into the trade, the personal property having inventoried at fourteen hundred dollars. When this hitch occurred in the trade, Jefferson gave his check to Walker for two hundred dollars, and thereupon Walker gave Bartlett his check for fourteen hundred dollars. Thus it appears upon Jefferson’s theory that Jefferson gave twenty-three thousand dollars for the farm, and twelve hundred dollars for the personal property, and it thus clearly appears that the defendant’s commission on that trade was in fact thirty-eight hundred dollars.

There was evidence tending to show that the •defendant at all times represented to the purchasers of the Block land that the owners of that tract required eighty thousand dollars cash net as the price thereof, and that the defendant never disclosed to the plaintiff that he had a contract by which if he sold it for eighty thousand dollars he was to get twelve thousand five hundred dollars commission. A letter dated Louisiana, February 21,1902, from defendant to W. A. Block, is in these words:

“Dear Sir: — I have your agreement this a. m., and I believe I can put the deal through, but what I want is consideration of sale, eighty thousand dollars, so that I can show it to the purchaser. Then we can have our private arrangements as to what you are to pay me, which is none of their concern. I cannot show them your letter as it is, because they would think I was getting too much out of it, and would make a big láek. So please send me an exact copy of the letter I received this a. m. with the exception of the consideration, and make that consideration eighty thousand dollars, and accompany it with another letter saying if I sell it at eighty thousand dollars net you will pay me twelve thousand five hundred dollars commission. In that shape, I can handle it; otherwise, I am handicapped to such an extent that I can do nothing.
* ‘ Yours truly, A. M. Walker. ’ ’
In accordance with this request Block wrote the following two letters to the defendant:
“St. Louis, Mo., Feby. 22, 1902.
“A. M. Walker, Esq.,
“Louisiana, Mo.
“Dear Sir: — Your favor of the 21, and 22, inst. were received and in reply I beg to state that if the sale of the B. L. & F. C. land is completed, we are willing to pay you the amount we may receive in excess of sixty-seven thousand five hundred dollars (67,500) net. It is understood that in case the sale should not be completed on account of whatsoever cause or reason, neither we, nor any of us, nor the B. L. So F. Co. shall be held liable or responsible in any manner, way or shape. This offer is good until March 1st, 1902, and void thereafter.
“Yours very truly, Wm. A. Block.”

The other letter dated as of February 20, 1902, is as follows:

“Mr. A. M. Walker,
“Louisiana, Mo.
“Dear Sir: — My brothers and I agree to sell you or your assigns the B. L. & F. Co. land in Pike county, Mo., for eighty thousand dollars ($80,000) net cash money to be paid in St. Louis upon our delivering deed for the property. It is understood that if any title to any part of said property should be found to be defective in any way, you will perfect the same without cost to us. We also reserve the right to remove our’ personal property within sixty days, also1 that all con-, tracts, agreements and leases now in force shall be binding on you in our stead. Contract of sale to date from date of deed. This agreement is good until March 1, 1902, andvoid thereafter.
“Yours truly, Wm. A. Block.”

The compromise agreement alluded to in the pleadings and evidence was dated February 28,1902, and was as follows:

“Owing to a compromise agreement as to the amount of the commission to be paid W. Gr. Sawyer by A. M. Walker on account of the sale of the Block farm, whereby said commission is to be fifteen hundred dollars cash instead of twenty-five hundred dollars as previously agreed. However it is agreed if sale of the Hart farm can be made to any customer furnished by said Sawyer for twenty-five thousand dollars or more between now and March 16, 1902, or at any time when said farm can be bought at the price it is now offered at, the said Walker agrees to pay said Sawyer one thousand dollars in addition to the . commission already agreed upon for such sale, and it is further agreed that if before incorporation of a company to handle said Block farm said Walker should sell his interest in said farm for ten thousand dollars, or more; the said Walker agrees to pay to said Sawyer one thousand dollars in cash at the time of such sale, or if said Walker should sell said interest within four years for twelve thousand dollars or more, the said Sawyer is to receive the sum of one thousand dollars as full consideration of said commission.” Signed, by both A. M. Walker and W. GL Sawyer.

The testimony on the part of the plaintiff also tended to show that the contract between Weber and Carpenter and the defendant for the sale of the Block land, was entered into on the 15th of February, 1902, for the price of eighty thousand dollars, and Carpenter testified that Walker always assured him that there was nothing in it for him at that price, and then it was agreed that Walker should take ten thousand dollars of the stock of the company that was to be formed, and he should have a contract to resell the land within two years and the exclusive right to sell the land. That agreement, however, was modified so that Walker should subscribe for only five thousand dollars of the stock. On the Bartlett tract of land there were letters of the defendant to Bartlett offered and read in evidence, one dated March 19,1902, in which the defendant among other things says to Bartlett, “Do not let anyone know what I am getting out of it, except the banker, and of course he will have to know. I am dividing with some other real estate agents on all over twenty-two thousand dollars, and they are under the impression that that is what it is costing me, and I want them to keep on thinking that. ’ ’

In the letter of October 9, 1902, the defendant writes as follows:

“A. L. Bartlett,
“St. Joseph, Mo.
“Dear Sir: — Tours to hand and in reply will say that Sawyer is claiming that I agreed to pay him one-half of the commission received on the sale of the Hart farm and also the Block farm which is just north of Louisiana; and I claim that I agreed to pay him a specified sum. If you remember, I had you give me the checks, one of three thousand dollars and' the other of two thousand dollars and told you that the three thousand dollar check was the only one Sawyer was interested in and expected to turn it over to him, out of which he was to pay for twelve hundred dollars worth of personal property which he had included in the sale of the farm to J efferson for twenty-five thousand dollars. Sawyer thought best for me to close the matter up with you so Jefferson gave me two hundred dollars in cash for the balance of the personal property and I then gave you a check for fourteen hundred dollars and gave Sawyer my check for eighteen hundred dollars, which will leave me clear in the deal two thousand dollars. Sawyer was claiming a one thousand dollar balance due him at that time on account of the sale of the other farm. So I told him in order to wipe that out, he would have all over twenty-two thousand dollars he could sell the Hart farm for, and as he was dead sure that J efferson would take it, he agreed to that, but when Jefferson made him an offer it was as follows: ‘I will take the farm at twenty-five thousand dollars if you will put in all the personal property which is on the farm. ’ Sawyer thought it was the best he could do, so he accepted it, and I guess if Jefferson had insisted upon it Sawyer would have had to pay for it all, even if it had taken all of his three thousand dollar margin. My attorney, Mr. Ras L. Pearson, will call on you very early to-morrow a. m. and go over the whole matter with you. “Yours truly,
“A. M. Walker..”

Plaintiff further testified that at the time he made the compromise agreement with the defendant, he did not know that defendant was to receive the twelve thousand five hundred dollar commission from the Block company and that prior to that time he had already brought Weber and Carpenter to the attention of the defendant and had been trying to sell them the property, nor did he know of the agreement with Bartlett that defendant was to have all over and above twenty thousand dollars for the Hart tract, and that he. had practically earned this one-half of the commissions on those sales when he agreed to take the amount named in the compromise agreement, and that defendant had kept the true facts from him and for that reason he had entered into the agreement to take a smaller commission, On the part of the defendant, the defendant himself testified that he had the Block and Hart farms listed for sale when he first met the plaintiff. He testified that his agreement with the plaintiff to pay him half of the commissions of all tracts of land that • he might sell had no reference to the Block and Hart tracts, as to which he had special contracts with the plaintiff. He testified that his original contract with plaintiff was to pay him twenty-five hundred dollars for the sale of the Block tract if the land was sold for eighty thousand dollars cash. And on the Hart farm he would give him half of all over twenty-three thousand dollars that the farm sold for. He testified that afterwards, in February, the contracts he had made with the plaintiff for the commissions on these farms were destroyed, and a substitute contract entered into between them some time in the latter part of February. He testified he could not produce the original contracts with plaintiff because they were destroyed. He also testified that the additional one thousand dollars that he was to pay the plaintiff was relinquished by the plaintiff in order to close the sale of the Block farm in consideration that defendant was to give him all over twenty-two thous- and dollars he could get for the Hart farm. He also detailed at length the sale of Bartlett’s tract and the payment therefor to Bartlett and the receipt of the five thousand dollars including the one thousand two hundred dollars for the personal property, in two checks, one for two thousand dollars and the other for three thousand dollars. According to his testimony, Sawyer made the sale to Jefferson of the Hart farm. On cross-examination he admitted that he received twelve thousand five hundred dollars for the sale of the Block farm. He wired Sawyer, the plaintiff, that if he had to take the ten thousand dollars worth of stock in the corporation, he could not afford to pay him the commission he had previously agreed upon. He testified' further that at that time it was not his understanding that he was to get the Block tract of land for sixty thousand dollars, and that he was to receive twenty thousand dollars as his commisson, and did not so state to Mr. Goodman, the cashier of the bank at Louisiana, who had testified that the defendant told him that he had made twenty thousand dollars in that deal. He identified his signature to the various letters offered by the plaintiff and also the handwriting of Mr. Block to the letters received by him from Block, and stated those letters were true copies of the letters he had received. He testified that he had had the Block farm for sale for several years for sixty thousand dollars, but when he began to talk to Block about eighty thousand dollars the latter shoved his pegs up to sixty seven thousand five hundred dollars instead of sixty thous- and dollars. He denied ever sending the telegram to plaintiff that he could not get the land for less than eighty thousand dollars and therefore could not pay him but half of what he had agreed to pay him before. And also denied telling Bartlett why he wanted the five thousand dollars divided into two checks. He never had any other real estate agent in Minneapolis except the plaintiff in these deals. In reply to the question, “ This so-called modified agree-merit dated February 28, 1902, was written after Mr. Sawyer had earned his money?” he answered, “It was reduced to writing after the deal was closed, but it was agreed on before. I did not tell plaintiff at that time that I had received from the Block deal twelve thousand, five hundred dollars for the reason it was none of his business. I never did tell him in the world. ” He denied telling Weber that eighty thousand dollars was the net price to Mr. Block that the land could be sold for; I told him that I was not making a fortune out of the land.

The defendant offered in evidence the judgment of the Pike County Land Company against A. M. Walker; defendant, in the United States Circuit Court for the Northern Division of the Eastern Judicial District of Missouri, which was objected to by plaintiff for the reason that the plaintiff was no party to that suit and no party to this proceeding or had anything to do with it; defendant could not take money due to plaintiff and invest it in any way by which he might cause a judgment to be entered against him in favor of any parties to those suits. Which objection was sustained.

In rebuttal the plaintiff also offered evidence tending to show that the defendant’s reputation for truth and veracity in the county in which he lived was bad and the defendant also offered evidence tending to show that his reputation in that respect was good.

The instructions will be noted in. the course of the opinion.

I. The first ground upon which defendant relies to reverse the judgment of the circuit court is that the petition does not state a .cause of action. Under this head the petition is assailed, first, on the ground that it alleges that there was a settlement in full by the defendant of the contract made by him with the plaintiff. But we think it is clear that this objection to the petition is without merit. While the plaintiff pleads that he received three thousand three hundred dollars from the defendant and receipted him therefor, he alleges that said pretended settlement and receipts were obtained from him by defendant by the deceitful, fraudulent and false representations of the defendant that he was only to receive as commission a compensation for the sale of the Block tract all he could sell the same for over eighty thousand dollars and of the Hart tract all he could sell it for over twenty-three thousand dollars, and that plaintiff believed and acted upon these false and fraudulent representations in making said settlement with the defendant. If, as plaintiff alleges, the said receipts were obtained from him by means of the fraudulent representations of the defendant, and he was induced to accept said three thousand three hundred dollars in full of his one-half of the commission, which he alleges he was entitled to and had earned under his contract with the defendant, the acceptance of the three thousand, three hundred dollars and his receipts therefor, were no' bar to his action for the balance due him.

n. It is next insisted that the petition is bad because there was no contract set out or pleaded in either count of plaintiff’s petition. As to this point it is only necessary to say that this is an action for fraud and deceit. As was said in Corder v. O’Neill, 176 Mo. l. c. 437, “This is not an action to enforce the verbal contract referred to in the petition, nor is it an action for the breach of it.” But is an action for fraud and deceit. The petition sufficiently avers the agreement between the plaintiff and the defendant by which the defendant agreed with plaintiff that if plaintiff would furnish defendant a customer or customers for any lands defendant had for sale either in Missouri or Hlinois, defendant would divide equally with the plaintiff any commissions he received for such sales at the time the deals were closed. It was perfectly competent under the other allegations to show that plaintiff in pursuance ' of said agreement found and brought solvent purchasers to the defendant, who did purchase said lands at and for the prices which defendant represented to plaintiff he held the said lands for sale.

As to the further objection, that the petition does not plead an acceptance by plaintiff of the propositions made to him by defendant, the petition especially avers: “That the plaintiff accepted said proposition and began negotiations with various parties to perfect sales of the land situated in Pike county, Missouri, for which the defendant was the agent in charge of and of which defendant represented to plaintiff he had the selling,” etc. This was sufficient pleading of the acceptance of the proposition. It was not at all essential that plaintiff should set out the evidence in his petition by which he expected to prove his acceptance of the said proposition. But it is not necessary to dwell upon this point, as the evidence abundantly established not only by the admissions in the answer, but by the defendant’s own testimony it is shown that he did accept the services of the plaintiff in making the sales of the said Block and Hart tracts of land, and that the sales were made for the price which he set upon the lands, when he employed the plaintiff to assist him in the sale thereof. The plaintiff testified that he accepted the proposition and went to work under it to procure the purchasers, and this was sufficient acceptance. [Allen v. Chouteau, 102 Mo. 309, and cases cited.]

Neither do we think there is any merit in the point made that there was no averment that the plaintiff kept or performed the provisions of the contract. The petition is amply sufficient in this respect.

Again, it is insisted that there is no evidence to support the verdict on either count of the petition. This is based upon the contention that the proposition in the letter of January 30, 1902, was never accepted by the plaintiff, and, therefore, there was no proof of a contract. As we have already said, there was abundant evidence of the acceptance of the proposition made to plaintiff by the defendant. The letter of January 30, 1902, was shown to have simply been .a reduction to writing of an agreement made not later, any way, than the 9th of December, and plaintiff’s evidence was that he had been acting under that agreement in seeking purchasers for the lands for two months prior to the time it was reduced to writing in the letter of January 30,1902. It was not at all necessary that he should make a written acceptance of the proposition contained in that letter. He had answered it in person by acting upon it, and by obtaining the purchasers for the said lands for the defendant, and that was sufficient for the purposes of this case. [Allen v. Chouteau, supra; Corder v. O’Neill, 176 Mo. 437.]

III. It is next insisted that the court erred in the admission of testimony which tended to vary and change, the terms of the alleged written contract. This is an action for fraud and deceit, and a large portion of plaintiff’s case consisted in showing the writings of the defendant by which he sought to bind the plaintiff to the acceptance of much less than his contract with the plaintiff entitled him to. Fraud vitiates even the most formal documents, and it is a settled law of this State that receipts though expressed to be in full of all demands have no contractual elements, but are opened to be explained by parol, and at most are only primafacie evidence of the facts therein stated. [Aull v. Trust Company, 149 Mo. l. c. 17; Ireland v. Spickard, 95 Mo. App. l. c. 64.]

This objection to the testimony leaves out of view altogether the fraud pleaded in the petition and the reply to which the evidence was directed. The learning on the subject of tbe admissibility of parol evidence to vary and change tbe terms of written contracts has no application to tbe issue presented by tbe pleadings in this case, nor do we agree with tbe learned counsel for tbe defendant that none of tbe exhibits, to-wit, tbe létters of tbe defendant to Block and Bartlett, have any reference to tbe plaintiff. Tbe evidence shows beyond all controversy that plaintiff was tbe real estate agent in Minnesota to whom those letters referred. Defendant admitted that be bad no other real estate agent in said State in regard to these real estate transactions. Neither did tbe admission in tbe pleadings that tbe Block tract was sold for eighty thousand dollars, and that tbe defendant received twelve thousand five hundred dollars commissions therefor, shut out tbe proof by tbe plaintiff that these facts were sedulously concealed from him and that be was rendering bis services for the defendant in absolute ignorance that defendant was to receive such commission and that by tbe machinations of tbe defendant be was kept in ignorance thereof and induced to accept tbe three thousand three hundred dollars in lieu of bis half of tbe commissions received by tbe defendant, and that be entered into tbe so-called compromise agreement in ignorance of tbe true facts. In tbe admission of evidence to establish fraud, tbe courts have always allowed tbe broadest latitude, and we tbink that tbe whole correspondence between these parties was clearly competent under tbe issues on trial.

IV. It is next insisted that tbe court erred in rejecting tbe judgment of the United States Circuit Court in tbe case of tbe Pike County Land Company against tbe defendant, A. M. Walker, on tbe ground that tbe Circuit Court of tbe United States was induced to render tbe judgment that it did against tbe defendant upon tbe testimony of Weber and Carpenter, witnesses produced by tbe plaintiff in that case; that tbe plaintiff herein, in his efforts to sell ‘them the Block tract, represented to each of them that neither he nor Walker, the defendant herein, would get any commission or compensation as agents for the sale of the Block tract of land and that $80,000 was the net price to the owner. We think the court committed no error in excluding that record. The plaintiff in this action was not a party to that suit and his rights could not be adjudicated in an action to which he was not a party. That case was decided by Judge Adams against the defendant because of the fraud practiced by him upon his co-promoters of the Pike County Land Company. Moreover, according to plaintiff’s testimony in this case the representations he made to Carpenter and "Weber were those that were made to him by the defendant herein, and were the same that the defendant was shown by the same witnesses in this case to have made to them and believed by them to be true and in addition to that both Carpenter and Weber were witnesses in this case and the defendant had the full benefit of their evidence on that subject.

V. Defendant complains of the first five instructions given by the court for the plaintiff. The error assigned as to these instructions is not several, but seems to be' aimed at them as a whole. It is first insisted that the court submitted to the jury whether or not the acceptance pleaded was sufficient in law to close the contract. It would serve no good purpose to set forth these instructions in full, but it is sufficient to say that on this point it was simply submitted to the jury whether the plaintiff and the defendant made an agreement that if plaintiff would furnish the defendant a customer or customers for any lands the defendant had for sale either in Missouri or Illinois defendant would divide equally with the plaintiff any commissions the defendant might receive for such sales at the time the deals were closed. The instructions very favorably submitted the ultimate fact whether such an agreement had been made and whether plaintiff had complied with his part of said agreement and had furnished the customers for said tracts of land. "Whether there was such an agreement was a matter of fact under the evidence submitted to the jury and there was no question of law as' to the acceptance submitted to them, and the "same may be said as to whether by the agreement it was stipulated. that if plaintiff would furnish the defendant a customer or customers for any lands defendant had for sale either in Missouri or Illinois, defendant would divide equally with the plaintiff any commissions the defendant received for such sales at the time the deals were closed. Certainly defendant cannot complain that the court did not "direct the jury that by the letter of January 30, 1902, and known as “Exhibit A” in the record, the defendant did make such an agreement with the plaintiff, for such were the plain terms of that instrument. Again it is complained that the court erronously submitted to the jury as a legal proposition whether or not the Block tract was included in the terms of the written contract. Obviously there was no error on this point. The agreement was in general terms that if the plaintiff would furnish the defendant a customer or customers for any lands defendant had for sale either in Missouri or Illinois, defendant would divide equally with plaintiff any commissions he might, receive for such sales at the time the deals were closed. It was a question of fact whether defendant had for sale at that time either the Block tract or the Hart tract; if he did as a matter of fact, then it was for the jury to so find and if so plaintiff was entitled to his commissions thereon. It was a sharp issue in the evidence whether these two- tracts were included in the general terms of the agrément above specified . or whether as defendant contended these two tracts were excepted' out of that general agreement by special contracts in which a different commission was to be allowed the plaintiff. As to the representations in regard to the price at which the defendant had the Block and Hart tracts for sale, and his representations as to what he was to receive as his commission for the sale of each, those were clearly matters of fact which were to be found by the jury as a predicate for their verdict. This objection to the instructions, we think, is entirely untenable. The instructions fairly submitted to the jury the issues of fact made by the pleadings. The authorities industriously collected by the learned counsel as to the duty of the court to interpret the meaning and legal effect of written instruments have little or no application to the issues in this case, which were .questions of fraud and deceit and false representations. Moreover, the court at the request of the defendant instructed the jury that if they found from the evidence in the cause, that defendant’s proposition of January 30,1902, did not relate to, include or apply to the Block and Hart farms, and that the sale of the said tracts so far as the plaintiff and defendant were concerned was made in separate and distinct contracts, neither party at any time having agreed that such sales should be made under the said proposition of January 30, 1902, then the finding of the jury should be for the defendant on each count. And also at the request of the defendant instructed the jury that if plaintiff on or about the 9th of January, 1902, entered into a contract with the defendant by which the latter agreed to pay him the sum of two thousand five hundred dollars for finding a purchaser for the tract of land known as the Block farm and that plaintiff acted under such contract until the sale of said land to Weber and Carpenter, then the verdict on the first count should be for the defendant. Thus submitting identically the same questions to the jury • that defendant now complains were matters of law for the court alone. The defendant having submitted the case upon that theory cannot now shift his position in this court and convict the circuit court of error because it adopted his own theory of the ease. This is too well settled to require the citation of authority. Again in his second instruction the defendant had the court to submit to the jury whether “the plaintiff accepted the defendant’s offer of January 30, 1902, to share equally all the commissions on the sale of lands for which he furnished purchasers, and that he acted under said offer in negotiating the sale of the Block farm to Weber and Carpenter.” Evidently at that time the defendant did not think this was a pure question of law for the court, but was one of fact whether the plaintiff accepted and acted upon defendant’s propositen. The court also instructed for the defendant that if plaintiff, at the. time he signed the so-called compromise agreement of February 28,1902, by which he agreed to accept one thousand five hundred dollars in cash, and one thousand dollars additional conditioned upon the subsequent or second sale of the Hart farm, knew or was aware that defendant was to receive any commissions or profits from the sale of the Block farm to Weber and Carpenter, then plaintiff acted with knowledge of the facts and was not entitled to recover on the first count of the petition. This instruction was entirely in harmony with the plaintiff’s instruction, because under that instruction plaintiff could only recover if he had been fraudulently deceived by defendant and was ignorant of defendant’s contract for commissions on the sale of the Block and Hart farms. Under defendant’s instruction if he knew of the arrangements of the defendant with the Blocks and Bartlett and then agreed to accept the new commission provided by the article of February 28, 1902, he could not recover. It was a question of fact for the jury to find whether he did know -of defendant’s contract with Block and Bartlett, or whether he was fraudulently kept in ignorance therof..

VI. As to the contention that the admissions in the reply are a complete bar to plaintiff’s recovery, a reference to that pleading will show that plaintiff simply admits the signing of the Exhibits A and B, and then alleges that his signature thereto was obtained and said originals were agreed to by him by the false, fraudulent and willfully deceitful representation knowingly made to him by the defendant that the amount's named therein were all the sums due plaintiff by the defendant as his share of the commissions out of the sale of the said Block and Hart tracts of land, and that plaintiff’s receipt and the said so-called1 compromise agreement were fraudulently obtained as set forth in the petition and are void. We think the allegations of the reply were ample when taken in connection with the averments of the petition, and that the1 record furnished abundant evidence justifying the jury in reaching the verdict which they did.

We have carefully gone through the record in this case and the evidence furnished by the defendant in his abstract of the bill of exceptions, and we find that the contention of the plaintiff that he has omitted therefrom Exhibits O and Q is well taken. If Exhibit C was offered and read in evidence as copied in the additional abstract furnished by the plaintiff, it was a most important piece of testimony when we consider the issues on trial in this case.

The verdict of the jury in this case has received the approval of the circuit court which heard the cause and after a careful examination of the evidence in the case, we are of the opinion that the verdict is for the right party, and that there was no reversible error committed on the trial. The judgment is affirmed.

Fox, P. J., and Burgess, J., concur.