Hollmann v. Conlon
| Decision Date | 29 March 1898 |
| Parties | Hollmann v. Conlon et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood Judge.
Reversed and remanded (with directions).
G. A Finkelnburg for appellants.
(1) The granting of a decree for specific performance is at all times a matter of discretion, not a matter of right, and such a decree may be granted or refused as the court may think proper under all the circumstances of the case, or plaintiff may be remitted to his action at law. Story's Eq., par 742; Veth v. Gierth, 92 Mo. 97, 104; Paris v. Haley, 61 Mo. 453; Pomeroy v. Fullerton, 131 Mo. 581. (2) There are few cases in which a court of equity will insist on the maxim that he who seeks equity must do equity with more rigor than in those for specific performance, and the party who does not show himself prompt and eager to perform all that a contract requires of him will not have a decree for specific performance in his favor. Waterman on Spec. Perf., note 2, p. 576. (3) Plaintiff having wrongfully and captiously refused to close this transaction when called upon to do so and when a deed was tendered to him, he can not now after the property has been otherwise disposed of insist upon being placed in his original position. (4) A plaintiff who refused a title when tendered, can not insist upon specific performance of a contract to convey land, when the title he will get is precisely the title which he refused. Goldthwait v. Crowther, 9 Utah, 186. (5) This contract being within the statute of frauds and having been signed by defendants only, was not binding on plaintiff, who had neglected to sign it. This want of mutuality in a contract has always been held to bear against the remedy of specific performance. Mastin v. Halley, 61 Mo. 200; Warren v. Castello, 109 Mo. 342; Fry on Spec. Perf., sec. 440. (6) The fact that the $ 100 earnest money still remained in defendants' hands at the trial does not change the legal or equitable status of this transaction. Defendant's bookkeeper testified that he offered to return it to plaintiff when the latter refused to pay the purchase money. Plaintiff denies this. But on the other hand it is not pretended that the return was ever demanded by plaintiff or refused by defendant. If necessary the court may in a decree dismissing the bill order the earnest money to be returned. Fry on Spec. Perf., par. 1462 et seq. Silence on the part of vendor and non-action after default on the part of vendee are presumptive rescission. Hogan v. Kyle, 35 P. 399.
Fisse & Kortjohn for respondent.
(1) The contract in question was proven with absolute certainty and the court, in the exercise of a sound discretion, was bound to make the decree it did. (2) Plaintiff never refused to take the property, even according to the evidence of defendant himself, and whether Conlon had a right to rescind the sale or not, he could not rescind the same without offering to Hollmann the earnest money which the latter had paid to him, nor could he rescind the sale at three o'clock on the seventeenth day of January, 1893. (3) Time was not of the essence of the contract in question. (4) The defendant, Charles Green, knew, or was bound to know, all the facts as they appear in evidence; and therefore, if there was a right to specific performance against Conlon, there is now such a right against Green. Maybee v. Moore, 90 Mo. 340; Eggert v. Dry Goods Co., 102 Mo. 512. (5) When the courts speak of mutuality as a prerequisite to entitle a party to specific performance, they mean that the contract is such that the thing to be done by either party could be ordered specifically performed. (6) Whenever specific performance has been refused because both of the parties did not sign the contract, such refusal was always based on the proposition that there was no consideration for the signing by one of the parties excepting the signature of the other. But wherever one for a consideration signs what is sometimes called a unilateral contract to do a certain thing, such a contract will be specifically enforced, especially when, as in this case, the statute of frauds has not been pleaded. Ivory v. Murphy, 36 Mo. 534; Luckett v. Williamson, 37 Mo. 388; Mastin v. Grimes, 88 Mo. 478; Maybee v. Moore, 90 Mo. 340; Eggert v. Dry Goods Co., 102 Mo. 512; Pomeroy v. Fullerton, 131 Mo. 581.
Specific performance was asked and obtained upon the following unilateral contract, to wit:
The separate answers of defendants consisted of general denials.
The substance of the testimony is to the effect that plaintiff had negotiations with Conlon in the latter part of December 1892, respecting the property in question. Such negotiations resulted in the payment by plaintiff to Conlon of $ 100 and the reference by the latter to Green & LaMotte as his agents that they would send plaintiff a receipt by mail, which was done next day. By the eleventh day of January next thereafter, the title had been investigated, but no step was taken by Hollmann to settle the matter, nor did he inform Conlon nor the latter's agents, Green & LaMotte, that an examination of the title by Gehner showed that the taxes on the land for 1892, amounting to $ 83.02, remained unpaid. On the seventeenth day of January, in the afternoon, Hollmann telephoned to Green & LaMotte that he was ready to close the transaction, but still did not inform them that the abstract of title prepared by Gehner showed the taxes for 1892 were unpaid. Upon receiving this telephone message, Green & LaMotte sent Lightholder down to Hollmann's place of business with a deed from Conlon for the property, in order to deliver the deed to Hollmann and to collect the balance of the purchase money, to wit, the $ 3,900. On Lightholder's arrival, Hollmann for the first time announced that his title examiner had reported the taxes for the year 1892 were unpaid, and thereupon offered to draw a check for the $ 3,900, less the taxes. This offer Lightholder peremptorily refused to accept, telling Hollmann at the same time that the taxes had been paid; that he himself had paid them, and that the title examiner had erred in his report, but Hollmann asserted that he would stand by his title examiner. Upon Hollmann announcing this determination, Lightholder invited Hollmann to go with him to the title examiner and have the mistake corrected, but this Hollmann declined to do. Lightholder thereupon returned to Green & LaMotte's office where Conlon was waiting to receive his money, and reported what had transpired. Pursuant to instructions, Lightholder called at Hollmann's store again and tried to finish the business, and asked Hollmann to go with him to the collector's office, and he would satisfy him from the books there that the taxes were indeed paid and so entered on those books, but Hollmann refused. Finding himself again baffled by the obstinacy of Hollmann, Lightholder returned to the office of Green & LaMotte for further instructions, and receiving them, for the third time went to Hollmann's store, and told him that he would have to pay the amount due, and without deduction or the sale would be off. But Hollmann replied as he had done before, and throughout these conversations constantly asserted that he had paid the title examiner to investigate the title, was satisfied with that examination and would do nothing further. During this last conversation, Lightholder, as he testifies, took the $ 100 earnest money, and tendered it to Hollmann, but this is denied by Hollmann and an employee of his who was in Hollmann's office at the time. Lightholder returned the $ 100 to Conlon. The uncontradicted evidence, not only of Lightholder, but also of the deputy tax collector, and the tax books and receipts themselves produced in court, show that the taxes had in fact been paid on December 30, 1892, and consequently that in the contention made on this point by Hollmann, Conlon was right and Hollmann was wrong. While Lightholder was endeavoring to close the transaction with Hollmann, Conlon was waiting at Green & LaMotte's office for his money. The evidence shows that he was sadly in need of the money to pay off a mortgage debt, having come from his home in Chicago to St. Louis...
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