Meek v. Hurst
| Decision Date | 27 November 1909 |
| Parties | B. J. MEEK, Appellant, v. JOHN B. HURST |
| Court | Missouri Supreme Court |
Appeal from Livingston Circuit Court. -- Hon. J. W. Alexander Judge.
Affirmed.
Davis & Son and P. D. Kitt for appellant.
(1) When a description of the land in a contract for the conveyance of real estate is by mistake indefinite and uncertain, the contract may, in the same suit, be reformed and then specifically enforced as reformed. Hook v Craighead, 32 Mo. 405; Waterman v. Dalton, 3 Wis. 273; Pomeroy on Spec. Per. (2 Ed.), sec. 262; Glos v. Wilson, 198 Ill. 44; 20 Ency. Pl. and Pr., 396; Story's Eq. Jur., chap. 5; 20 Am. and Eng. Ency. Law (2 Ed.), 825. The Statute of Frauds does not interfere with the power of courts of equity to reform contracts when the parties intended to comply with the statute but failed through mistake. Conway v. Gore, 24 Kan. 389; 18 Ency. Pl. and Pr., 773. The power of a court of equity to reform instruments which come within the provisions of the statute has long been recognized by this court and is too well settled to be now overturned. Leitensdorfer v Delphy, 15 Mo. 167; Hutsell v. Crewse, 138 Mo. 1; Hook v. Brown, 195 Mo. 313; Fanning v. Doan, 139 Mo. 410; Mississippi Valley Ir. Co. v. McDonald, 146 Mo. 479; Franklin v. Cunningham, 187 Mo. 195; Sicher v. Rambousek, 193 Mo. 129; Crawley v. Crafton, 193 Mo. 431; Owens v. Railroad, 110 Mo.App. 327. (2) The references in the receipt to the contract which had been executed on April 25, 1905, are sufficient to require the price, the terms and the description of the property contained in the original contract to be read into the receipt as though they were a part thereof. The separate writings will be read together. Wiley v. Roberts, 27 Mo. 388; Briggs v. Muncheon, 56 Mo. 467; Donovan v. Brewing Co., 92 Mo.App. 341; Peycke v. Ahrens, 98 Mo.App. 456; Thayer v. Lun, 22 Ohio St. 62; Boeckeler v. McGowan, 12 Mo.App. 507; 20 Cyc., p. 263, par. 2; Heickman v. Walfstein, 12 Mo.App. 560.
Lewis A. Chapman for respondent.
(1) The petition fails to state facts sufficient to constitute a cause of action at law or in equity. The petition is based upon the alleged writings, dated April 25, 1905, and May 9, 1905. It is claimed that these constituted a contract. These writings are set out in the petition as the basis of the suit. There is no claim that there was any part performance such as would take a verbal agreement out of the Statute of Frauds. It is not claimed that there was any verbal agreement. It is alleged that the contract was an option contract until the receipt was signed by respondent, dated May 9, 1905. The whole claim of the appellant as the foundation must be deduced from the said alleged agreements. The first one is called an option contract. It is signed alone by the respondent. If the said contract was ever intended for an option contract the writer of it was very unfortunate in the language he used when he wrote it out. This was no option contract. "An option for the sale of land, supported by a valuable consideration is not a sale of real estate, nor an agreement to sell, but is an executed contract, giving the exclusive privilege of purchasing within the time limited, and which cannot be withdrawn within the stipulated time, and on acceptance becomes an executory contract which may be specifically enforced." Pollock v. Brookover, 53 S.E. 795. An option is simply a contract by which the owner of property agrees with another person that he shall have the right to buy the property at a fixed price within a certain time. Ide v. Leiser, 10 Mont. 5. (2) The contract dated April 25, 1905, was complete in itself. If the English language means anything it was simply and purely a contract of agency. It purports to be signed by the respondent and gave to the appellant authority to sell the land as agent for the respondent, and set forth the terms upon which he was authorized to sell. The appellant was authorized to make contract in the name of the respondent. He was to sell for cash, to be paid $ 500 to bind the bargain and the balance March 1, 1906, when the deed was to be executed and possession given. The appellant could execute contract in respondent's name and receive the $ 500. When the appellant turned over $ 500 to respondent as alleged and as appears by the receipt he did nothing more than he had a right to do under the terms of his agency and respondent's receipt is not any evidence of a sale, when read in connection with his contract of agency. The money was receipted for as having been received by the appellant on a sale he had made to some one under the terms of his contract of agency. The receipt refers to the agency contract and the amount paid is the very amount that was to be paid down to bind a bargain. Johnson v. McGruder, 15 Mo. 369; Mann's Executors v. Robinson, 42 Am. Rep. 773. (3) An agent authorized to sell cannot without the consent of his principal become the purchaser. He cannot sell to himself. Mechem on Agency, secs. 461, 462; Grumley v. Webb, 44 Mo. 444; People v. Township Board of Overyssel, 11 Mich. 222; Clute v. Barron, 2 Mich. 192; Dwight v. Blackmar, 2 Mich. 330; Moore v. Mandlebaum, 8 Mich. 443; Merryman v. David, 31 Ill. 404; Catton v. Holliday, 59 Ill. 176. (4) If the contract of agency could be construed to be an option contract, which it could not be, there would have to be an acceptance by the appellant. There is no acceptance. There was no contract binding both parties. There is simply a receipt for so much money and a reference to the agency contract; there was no promise to perform on the part of the appellant, no binding obligation was on the appellant. Levin v. Dietz, 194 N.Y. 376; 20 L. R. A. [N. S.] 251.
Plaintiff claims to have purchased defendant's land in Livingston county by written contract; and sues for reformation and specific performance.
Cast nisi on a general demurrer to his first amended bill, he refused to plead over, suffered judgment and appealed.
The reformation sought relates to the contract description of the real estate, which is: Referring to the "6 1/2 acres," plaintiff's bill charges said contract description is not the true one but related to an agreement to sell two small parcels of land, viz., an acre off the south end of the southwest quarter of northeast of section 14, and 4 1/2 acres, more or less, described by given metes and bounds, in the southeast quarter of said section. In that regard the bill charges "that by a mistake of the scrivener in drawing said contract" the said two small parcels were described as "6 1/2 acres out of the S. E. 1/4, Sec. 14, instead of the true description" as set forth. It is not alleged in the bill that the scrivener in drafting the contract was the mutual agent of plaintiff and defendant; nor is it alleged that the mistake was a mutual mistake of the parties to the contract. It is charged that plaintiff is a real estate agent plying his vocation at Chillicothe as a dealer in buying and selling land. The record shows the contract was partly in print and partly in writing. Presumably it is a blank form used by plaintiff in his business. While not material to any question to be determined, it is fair to presume, from the usual course of business, that the "scrivener" was the plaintiff himself who filled out his own blank.
Referring to the phase of the bill anent specific performance, it will not be necessary to set forth the entire bill. In brief, it alleges the contract consisted of two parts, both in writing, bearing different dates, but relating to each other and both pleaded in haec verba -- the first part reading:
The second part reads:
For convenience, that part of the contract headed, "Authority to Sell," of date April 25, 1905, will be called "A;" and the receipt of date May 9, 1905, "B."
The bill is not drawn on the theory there was an...
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