Eisenbeis v. Shillington

Citation159 S.W.2d 641,349 Mo. 108
Decision Date25 October 1941
Docket Number37184
PartiesPercy O. Eisenbeis and Ruth C. Eisenbeis, Appellants, v. John J. Shillington
CourtUnited States State Supreme Court of Missouri

Rehearing Denied March 13, 1942.

Appeal from Circuit Court of St. Louis County; Hon. Peter T Barrett, Judge.

Affirmed.

Bryan Williams, Cave & McPheeters for appellants.

(1) Appellants are entitled to specific performance of the contract sued on. 58 C. J. 1029-1031, 917; 25 R. C. L. 272; 2 Restatement of the Law of Contracts, sec. 360; Missouri Annotations, Restatement of the Law of Contracts, sec. 360; Paris v. Haley, 61 Mo. 453; Rice v. Griffith, 144 S.W.2d 837. (2) When a plaintiff makes out a clear case for specific performance and none of the recognized equitable defenses are established, specific performance is granted as a matter of right and not as a matter of mere discretion. Beheret v. Myers, 240 Mo. 58, 144 S.W. 824; Kirkpatrick v. Pease, 202 Mo. 471, 101 S.W. 651. (3) The defense of alleged "mistake of fact" was not sustained because the respondent failed to show that he had signed the contract under a mistake of fact and equity will not relieve against a "mistake of law." Frederich v. Union Elec. L. & P. Co., 336 Mo. 1038, 82 S.W.2d 79; Clark v. Carter, 234 Mo. 90, 136 S.W. 310; Kleimann v. Gieselmann, 114 Mo. 437, 21 S.W. 796; Corrigan v. Tiernay, 100 Mo. 276, 13 S.W. 401; Norton v. Highleyman, 88 Mo. 621; Price v. Estill, 87 Mo. 378; Griffith v. Townley, 69 Mo. 13; Breit v. Bowland, 231 Mo.App. 433, 100 S.W.2d 599; 10 R. C. L. 304; 25 R. C. L. 242. (4) The defense of alleged lack of mutuality of obligation and of remedy was not sustained because specific performance will not be denied for any lack of mutuality at the inception of the contract if such mutuality existed at the time of, or upon the filing of, the suit. Falder v. Dreckshage, 227 S.W. 929; 58 C. J. 868; 25 R. C. L. 234; State ex rel. Sears, Roebuck & Co. v. Haid, 332 Mo. 701, 60 S.W.2d 41; Fleming v. Anderson, 232 S.W. 718; Ivory v. Murphy, 36 Mo. 534. (a) The requirement with respect to mutuality of obligation and of remedy as a prerequisite to specific performance does not apply to a contract for the sale of land or to any contract which has been fully performed by the party seeking specific performance. Smith v. Wilson, 160 Mo. 657, 61 S.W. 597; Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S.W. 480; Luckett v. Williamson, 37 Mo. 388; Kansas City v. Kansas City Term. Ry. Co., 324 Mo. 882, 25 S.W.2d 1055; Jones v. Jones, 333 Mo. 478, 63 S.W.2d 146, 90 A. L. R. 219; Walker v. Owen, 79 Mo. 563; Note 6, L. R. A. (N. S.) 391; Note 22, A. L. R. 1060; 5 Williston on Contracts, Revised Edition, pp. 4007, 4017, 4010-16, 4018-35. (5) The defense of alleged defect of title was not sustained because the title conforms to the title called for by the contract. Birge v. Bock, 44 Mo.App. 69; Gerhart v. Peck, 42 Mo.App. 644; Rozier v. Graham, 146 Mo. 352, 48 S.W. 470; Mastin v. Grimes, 88 Mo. 478; Williams v. Ellis, 239 S.W. 157. (6) The defense of alleged fraud and misrepresentation was not sustained because (a) The statements attributed to the broker, Rogers, with respect to the restrictions were not representations, false or otherwise, as to an existing or past fact or facts, but merely an expression of an opinion as to a matter of law. Stacey v. Robinson, 184 Mo.App. 54, 26 C. J. 1079, 1207; 12 R. C. L. 295; American Ins. Co. v. Capps, 4 Mo.App. 571; Ordway v. Continental Ins. Co., 35 Mo.App. 426; Allgood v. Tarkio Elec. & Water Co., 222 Mo.App. 964; Dalrymple v. Craig, 149 Mo. 345; Easton-Taylor Trust Co. v. Loker, 205 S.W. 87; Gilmore v. Ozark Mut. Assn., 21 S.W.2d 633; Bondurant v. Raven Coal Co., 25 S.W.2d 566; Thompson v. Kansas City, etc., Ry. Co., 27 S.W.2d 58; 12 R. C. L. 295; Metzger v. Baker, 93 Colo. 165, 24 P.2d 748; Harrington v. Heder, 109 N.J.Eq. 528, 158 A. 496; Wuesthoff v. Seymour & Wheelock, 22 N.J.Eq. 66; Phyfe v. Cohen, 131 N.Y.S. 620; Zempel v. Hughes, 235 Ill. 424, 85 N.E. 641; Wolleson v. Coburn, 63 Cal.App. 315, 218 P. 479; Bartley v. Big Branch Coal Co., 160 Ky. 123, 169 S.W. 601; Adkins v. Hoskins, 3 S.W.2d 322. (b) The statements attributed to the broker, Rogers, with respect to other prospective purchasers were not shown to be false and the testimony with respect to an agreement to release respondent from his contract and sell the property to one of such prospective purchasers was properly stricken out. Cole v. Smith, 26 Colo. 506. (c) The broker, Rogers, had no authority to make any such representations as those attributed to him by respondent. 12 C. J. S. 323; 8 Am. Jur. 1020; Edwards v. French, 304 Mo. 194, 263 S.W. 132; Judd v. Walker, 215 Mo. 312, 114 S.W. 697; Insurance Co. v. Carson, 186 Mo.App. 221, 172 S.W. 69; Millard v. Smith, 119 Mo.App. 701, 95 S.W. 940; Brauckman v. Leighton, 60 Mo.App. 38.

Jackson F. Adams for respondent.

(1) Specific performance of a realty purchase contract is not a matter of strict right but rests in the sound discretion of the court. Rock Hill Tennis Club v. Volker, 331 Mo. 947, 56 S.W.2d 9; Gottfried v. Bray, 208 Mo. 652. (2) The representations made by appellants' agent Rogers were sufficient to mislead respondent and to defeat specific performance. Hargis v. Smith, 178 S.W. 72; Gottfried v. Bray, 208 Mo. 652; Isaacs v. Skrainka, 95 Mo. 517. (3) Appellants are charged with the burdens of the contract procured by their agent Rogers. Millard v. Smith, 119 Mo.App. 701, 95 S.W. 940; Janus v. Olive Street Terrace Realty Co., 196 S.W. 81; Judd v. Walker, 215 Mo. 312, 114 S.W. 697. (4) Respondent had the right to rely on the representations of appellants' agent Rogers. Judd v. Walker, 215 Mo. 312, 114 S.W. 697; 26 C. J. 1083. (5) The findings of the chancellor in an equity case are not controlling on appeal, but nevertheless the Supreme Court will usually defer to his findings, especially where the evidence is conflicting, unless satisfied they are against the weight of the evidence. St. Louis Union Trust Co. v. Busch, 145 S.W.2d 426; McKinney v. Hutson, 336 Mo. 867.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

PER CURIAM:

Percy O. Eisenbeis and Ruth C. Eisenbeis, husband and wife, as vendors, seek the specific performance of a contract to purchase certain described real estate by John J. Shillington, vendee, who by cross-bill prayed for a rescission of said contract of purchase and the return of $ 200, earnest money deposit. The chancellor, nisi, being of opinion the parties should seek their remedy at law, denied the prayers of the vendors' petition and the vendee's cross-bill, and dismissed said petition and said cross-bill. The vendors appeal, asserting they made out a clear case for specific performance, defendant failed to establish any of the four affirmative defenses pleaded, which admittedly included, among others, the defenses of a mistake of fact and fraud and misrepresentations on the part of the vendors' agent with respect to the restrictions of record against the property, and contend that specific performance should have been granted as matter of right and not denied as matter of discretion.

Ruth C. Eisenbeis, on June 21, 1938, contracted with Arthur W. Chapman to acquire "Estate No. 2 of Algonquin Estates," an unimproved lot in St. Louis County, Missouri, the real estate involved, which transaction was to be consummated on or before August 5, 1938. Robert B. Rogers, a real estate broker, employed by A. T. & Whitelaw Terry, conducted the negotiations between Mr. Eisenbeis and Mr. Shillington. On July 15, 1938, Mr. Shillington was informed by Mr. Rogers that if he desired to purchase the matter was urgent; that he would have to act quickly as there were other offers, one of which was in excess of his. At Rogers' instance Shillington signed an instrument, prepared on the stationery of A. T. & Whitelaw Terry, and showing "A. T. & Whitelaw Terry, Agents" as the first signers thereof. It was in the nature of an earnest money contract. Mr. Shillington's consent thereto was evidenced by his signature to a paragraph immediately following the signature of "A. T. & Whitelaw Terry, Agents." This instrument recited, among other things, that the vendee had deposited $ 200 earnest money and had purchased the real estate involved for $ 4,750, subject to the approval of the owner; that it was conditioned upon the consummation of the contract dated June 21, 1938; that the title was to be perfect of record and in fact, and conveyance was to be made by warranty deed, containing the usual covenants of warranty, excepting, so far as material here, "restrictions, reservations and conditions now of record;" and that the transaction was to be consummated on or before August 16, 1938. This was taken to Mr. Eisenbeis by Rogers. Eisenbeis, over his and his wife's signature, by him, approved the sale and agreed to pay A. T. and Whitelaw Terry the broker's commission.

The Chapman-Eisenbeis contract was consummated August 4, 1938.

A month or two prior to the contract of July 15, 1938, Rogers had talked to Shillington about the property. The matter was not pushed, Rogers testifying the vendee did not show any great enthusiasm. Sometime after the first of July, Rogers again talked to the vendee. Shillington mentioned to Rogers the kind of residence he desired to construct, informing Rogers he was not in a position to spend and could not afford to spend more than $ 14,000 for a residence. On one of these occasions Mr. Rogers had a plat with him. This plat, we understand from Rogers' testimony, had been made by a young architect in an endeavor to induce Rogers to build houses in Algonquin estates. It had the figures $ 20 000 written on it in connection with "Estate No. 2" and Rogers, in answer to inquiries, stated to the vendee that was a...

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4 cases
  • Martin v. McCabe
    • United States
    • Missouri Supreme Court
    • July 12, 1948
    ... ... Ill. 493, 175 N.E. 846, 75 A.L.R. 890; State ex inf ... McKittrick v. Springfield City Water Co., 345 Mo. 6, ... 131 S.W.2d 525; Eisenbeis v. Shillington, 349 Mo ... 108, 159 S.W.2d 641. (8) The dominant and controlling ... question in the case is whether there is any collateral fact ... ...
  • State ex rel. Place v. Bland
    • United States
    • Missouri Supreme Court
    • November 6, 1944
    ... ... In other words ... the court has power to force the title on the purchaser by ... its decree without a deed. Eisenbeis v. Shillington, ... 349 Mo. 108, 113(1), 159 S.W.2d 641, 643(1). Our statute, ... Sec. 1255 so provides. See also 58 C.J., sec. 76, p. 917 ... ...
  • Burneson v. Zumwalt Co.
    • United States
    • Missouri Supreme Court
    • December 16, 1941
  • Bank of New Madrid v. Bullock
    • United States
    • Missouri Supreme Court
    • April 3, 1944
    ... ... enforce a specific performance. Veth v. Gierth, 92 ... Mo. 97, 4 S.W. 432; Eisenbies v. Shillington, 159 ... S.W.2d 641 (5), and cases cited. (3) Specific performance of ... contract will be denied where such a decree would be ... inequitable ... ...

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