Kelly v. Thuey

Citation15 S.W. 62,102 Mo. 522
PartiesKelly v. Thuey et al., Appellants
Decision Date19 January 1891
CourtUnited States State Supreme Court of Missouri

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Reversed and remanded.

Chase & Powell and Karnes, Holmes & Krauthoff for appellants.

(1) Plaintiff is here seeking aid of a court of equity to compel specific performance of a contract and must come with clean hands. When an agreement is tainted with fraud misrepresentations, or obtained by unfair means, equity will not lend its aid to its enforcement. Pomeroy on Spec. Perf sec. 175, pp. 243, 244. (2) The writing did not contain the real agreement, there being omitted from it that the vendee should pay for abstract, taxes for 1887 and 1888. If contract was signed on representation of party procuring it, that it contained whole contract, then it cannot be enforced. Rothschild v. Frendorf, 21 Mo.App. 323. It was admitted by James Kelly that he was to pay for abstract, but this was omitted from contract. A written contract will not be enforced if there has been fraud or mistake in writing the agreement. Fruin v. Railroad, 89 Mo. 405; Ramsbottom v. Gosden, 1 Veasey & Beam's Rep. 167, 168. (3) The contract being made and executed by D. T Kelly is the contract of D. T. Kelly, and can only be enforced by him. Fowler v. Shearer, 7 Mass. 19; Spencer v. Field, 10 Wend. 87; Seyfert v. Bean, 83 Penn. St. 484; Newcombe v. Clark, 1 Denio, 226. A memorandum which is so incomplete that it is necessary to supply by parol the amount of balance of purchase money is not sufficient to satisfy the statute of frauds. Schroeder v. Taaffe, 11 Mo.App. 267; Coles v. Brown, 10 Paige, 538; Scarritt v. Church, 7 Mo.App. 174. (4) The contract is made in the name of D. T. Kelly, and parol testimony is necessary to establish the interest of plaintiff, and is therefore insufficient under the statute of frauds, as the terms of the instrument cannot be changed or added to. Wing v. Glick, 56 Iowa 473; Schroeder v. Taaffe, 11 Mo.App. 267; Coles v. Brown, 10 Paige, 538. (5) D. T. Kelly, while acting as agent of defendant Thuey was, without Thuey's knowledge, acting as agent for plaintiff, and contract made by him is void as to defendant Thuey. Leekins v. Nordyke & Marmon Co., 66 Iowa 474. (6) The bill asks that the deed to Bush be set aside, and that defendant Thuey be ordered to execute a deed to plaintiff. The decree is that Bush shall execute to plaintiff a warranty deed. The decree is not responsive to plaintiff's pleadings, and is erroneous in that it requires Bush to make a warranty deed to plaintiff to the land, when in no event could he be required to execute other than such a conveyance as would pass all title Bush derived from Thuey. Cromie v. Marine, 12 Mo.App. 569; Henry v. Liles, 2 Ired. Eq. (N. C.) 407. (7) In actions for specific performance each case must be determined on its own merits. Durretts v. Hook, 8 Mo. 374; Ivory v. Murphy, 36 Mo. 534; Fish v. Lightner, 44 Mo. 268; Taylor v. Williams, 45 Mo. 80; Burk v. Seely, 46 Mo. 334; Paris v. Haley, 61 Mo. 453. (8) If the terms of the contract are unfair, harsh or oppressive, they will not be enforced. When the evidence shows that there was not an intelligent consent to the contract by the party against whom performance is sought, or that it was entered into under circumstances of surprise, or want of advice, or that one of the parties was an illiterate person, or in distress, the court will not compel him to perform, and age, poverty, lack of knowledge of business will all be considered. Waterman on Spec. Perf., secs. 158, 159; Pomeroy on Cont., secs. 175, 185; Stone v. Pratt, 25 Ill. 25; Taylor v. Williams, 45 Mo. 83; Veth v. Gierth, 92 Mo. 97, 104. (9) It requires much less strength of case on the part of defendant to resist a bill to perform a contract, than it does on the part of the plaintiff to maintain a bill to enforce a specific performance. 2 Story's Eq. Jur., secs. 769, 770; Vigers v. Pike, 8 Cl. & Fin. 562, 645; Veth v. Gierth, 92 Mo. 104. (10) The plaintiff cannot set up one cause of action in his petition and on the trial prove another and different one. Daugherty v. Matthews, 35 Mo. 520; Beck v. Ferrara, 19 Mo. 30; Waldhier v. Railroad, 71 Mo. 514; Clements v. Yeates, 69 Mo. 623; Deackman v. McCormick, 24 Mo. 596.

Dobson, Douglass & Trimble for respondents.

(1) As the contract sued on is not under seal, suit is properly prosecuted in the name of plaintiff, notwithstanding the name of D. T. Kelly appears in the written contract, or memorandum, as the purchaser. Briggs v. Partridge, 64 N.Y. 357; Wilson v. Hunter, 7 Taun 259, quoted with approval in Dykins v. Townsend, 24 N.Y. 57-60; Story on Agency [8 Ed.] secs. 160, 160a, and notes; Lerned v. Johns, 9 Allen, 421; Higgins v. Senior, 8 Mees. & Wel. 834; Ford v. Williams, 24 How. (U. S.) 287; Briggs v. Munchon, 56 Mo. 467; Huntington v. Knox, 7 Cushing, 371; Sims v. Bond, 5 B. & Ad. 393. Under our statutes, in view of the evidence in this case, the suit could not be prosecuted in the name of D. T. Kelly, because he is not the real party in interest. R. S. 1889, sec. 1990. (2) There is nothing in either the pleadings or evidence to show that the words, "Six hundred and sixty-four dollars," were interlined without the knowledge and consent of all the parties to the contract, and the presumption is that it was altered before signing and delivery. Holton v. Kemp, 81 Mo. 661, and cases cited; McCormick v. Fitzmorris, 39 Mo. 24. (3) But the insertion of the amount of the purchase price in such a contract or "memorandum" is not necessary. It may be supplied by parol testimony. Beans v. Valle, 2 Mo. 126; Halsa v. Halsa, 8 Mo. 303; Ivory v. Murphy, 36 Mo. 534; Whaley v. Hinchman, 22 Mo.App. 483. (4) There can be no doubt but the paper sued upon, or relied upon as a memorandum, is a sufficient memorandum to satisfy the requirements of the statute of frauds. Wiley v. Roberts, 27 Mo. 388; Lash v. Parlin, 78 Mo. 392; Ellis v. Bray, 79 Mo. 227; DeSteiger v. Hollington, 17 Mo.App. 382. (5) The judgment of the trial court is entitled to much weight, and will be deferred to, unless it is clear that the chancellor has disregarded the evidence. Royle v. Jones, 78 Mo. 403; Snell v. Harrison, 83 Mo. 652; Springer v. Kleinsorge, 83 Mo. 152, 159. (6) The fact that D. T. Kelly testifies that he was acting for both parties in making the sale to his brother cannot affect this case. It could only be used to defeat a recovery of commission from both sides for his services. Scribner v. Collar, 40 Mich. 375; Bell v. McConnell, 37 Ohio St. 396. (7) The contract upon its face was between Thuey and D. T. Kelly, and, therefore, Thuey knew that Kelly was not, and did not pretend to be, acting for him alone. Therefore, he cannot be heard to object to carrying out the contract on the ground that Kelly was acting for both parties. DeSteiger v. Hollington, 17 Mo.App. 382; Story on Agency [8 Ed.] secs. 31, 210; Young v. Hughes, 32 N.J.Eq. 372, 385; Short v. Millard, 68 Ill. 292; Fritz v. Finnerty, 5 Col.; 10 Cent. Law Jour. 487; Stewart v. Mather, 32 Wis. 344. (8) The evidence introduced by the defendant to sustain the charge in the answer, that D. T. Kelly obtained Thuey's signature to the contract by threats and violence and misrepresentations, does not in any particular sustain the charge as made, nor does it amount to duress of any kind, nor is it of a nature or character to entitle the defendant Thuey to any relief from the terms of the contract. Buchanan v. Sahlein, 9 Mo.App. 552; Emmons v. Scudder, 115 Mass. 372.

OPINION

Black, J.

This is an action for the specific performance of the following contract, which is dated the sixteenth of December, 1885:

"Received of D. T. Kelly $ 50, being in part payment of the purchase price of fifty-two feet by fifty off the west end of lot number * * *. I agree to make and deliver a good and sufficient warranty deed conveying said premises to said Kelly free of all incumbrances without delay, and as soon as the abstract of title thereto shall have been examined and approved, at which time said Kelly shall pay to me the sum of $ 950 in cash and (six hundred and sixty-four dollars) the balance of the purchase price he shall pay in three equal annual installments with eight-per-cent. interest to be secured by deed of trust executed on said property. If I shall fail to convey good title to said premises to said Kelly as aforesaid, then said $ 50 shall be refunded to him.

"Richard X Tooey,

"Bridget X Tooey,

"D. T. Kelly."

James T. Kelly claiming to be the real purchaser in due time tendered to Thuey the balance of the cash payment and offered to perform the contract by executing his notes and deed of trust for the deferred payments.

Two or three days after the execution of the contract, Thuey sold and conveyed the entire lot to the defendant, Bush, who purchased with full knowledge of the outstanding contract.

1. One defense is that the contract was altered by inserting the words, "six hundred and sixty-four dollars," after it had been executed; but the proof does not sustain the averment. Indeed, it is very clear that the words were inserted by way of interlineation before the contract was executed.

2. It is again insisted that D. T. Kelly procured the contract by false representations. The evidence shows that the lot was incumbered by a paving tax bill for $ 700; that Thuey was an old man, unable to read or write; that he owned no other property and was obliged to either borrow money on the lot or sell part thereof to pay the tax bill. The claim is, that Kelly told Thuey that if he made a mortgage on the lot he could not sell it, and in this way induced the latter to make the contract.

The evidence shows that Kelly advised Thuey to sell...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT