Turner v. Lord

• Decision Date: 16 May 1887
• Citation: 4 S.W. 420,92 Mo. 113
• Parties: TURNER and another v. LORD.
• Court: Missouri Supreme Court

4 S.W. 420

92 Mo. 113

TURNER and another v. LORD.

Supreme Court of Missouri.

May 16, 1887.

1. VENDOR AND VENDEE — ACTION ON BOND — BURDEN OF PROOF.

Where one sues on a bond for title to land, the production of the bond, and proof of failure to execute the deed, makes out a prima facie case for plaintiff, and where defendant sets up as a defense that the consideration for the execution of the bond was plaintiff's undertaking to secure the assignment to defendant of a certain patent right, but that the assignment tendered defendant was not valid, because executed by one as agent who had no authority to bind the owner of the patent, held, that the burden of proof, as to such failure of consideration, and want of authority of the agent, was on defendant.

2. DAMAGES — PENAL BONDS.

In actions upon penal bonds with collateral conditions, the plaintiff can never recover more in the shape of damages than the penalty, and this is true, not only of official bonds, but of other bonds also.

Appeal from circuit court, Greene county.

Buckley & Hutchin, for respondents. F. H. Sheppard, for appellant.

BLACK, J.

This is a suit for damages for breach of a bond, whereby the defendant acknowledged himself indebted to the plaintiff Turner in the sum of $200, conditioned as follows: "The condition of the above obligation is such that if the above-bound Isaac L. Lord, his heirs or legal representatives, shall and do upon, [here are six blank lines in the original instrument,] make, execute, and deliver, or cause to be made, executed, and delivered, unto said H. O. Turner, his heirs and assigns, a good and sufficient deed of general warranty such as will be sufficient to convey, assure, and confirm unto the said H. O. Turner, his heirs or assigns, a good and indefeasible estate in fee-simple, clear of all incumbrances, except taxes, of and in the following described real estate, to-wit," etc.

It is alleged, and the proof shows, that Turner assigned to the other plaintiff, H. F. Howell, a one-half interest in the bond and property. The answer states that defendant executed the bond upon the condition that Turner would, within a reasonable time, make to plaintiff a valid assignment of the sale right of one Patton to manufacture and sell a patent churn in certain counties; that this agreed condition was to have been inserted in the bond as the consideration thereof, but was omitted by mistake; that Turner never performed the condition, but on the seventh August, 1883, sent to defendant a pretended assignment of the patent, which he refused to accept, and that the delay was owing to the laches and neglect of Turner. Prayer for reformation of the bond, and that it be declared void.

There is no evidence that the alleged agreement was to be inserted in the bond, or that the bond was to be written out otherwise than it appears. It is therefore a bond in a penal sum for the conveyance of real estate. The answer seems to have been treated also as a plea of an entire failure of consideration, and upon that issue the proof is that, at the date of the bond, Turner sold to defendant the patent, and then, by agreement of the parties, deposited with Robert Howell an assignment of the patent to be delivered to defendant as soon as he should execute the deed to Turner. Defendant then only had a mortgage upon the lot, and was to foreclose, get the title, make the deed, and take up the assignment. Thus matters stood until 1883, when defen...