Davis v. Petty
| Citation | 48 S.W. 944,147 Mo. 374 |
| Parties | Davis et al., Appellants, v. Petty |
| Decision Date | 23 December 1898 |
| Court | United States State Supreme Court of Missouri |
Appeal from Lawrence Circuit Court. -- Hon. J. C. Lamson, Judge.
Affirmed.
Wm. B Skinner and Henry Brumback for appellants.
(1) The contract upon its face narrates the relations and the purposes of the parties, and discloses its own special reasons why the plaintiffs are entitled to specific performance, upon their having invested their money and their exertions in the enterprise in which they united with the defendant. The contract was more than an ordinary agreement to sell land by the defendant; he was selling at an advanced price the first parcel, and, at the same time, drawing to himself men and means with the express purpose of enhancing his one-fifth of the first and of the second parcels, and of his remaining forty acres adjoining them. Now that he has availed himself of the capital and the efforts of plaintiffs that have resulted in enhancing the values of his remaining lands, it would be inequitable to allow him to reap the entire growth to the exclusion of his associates. The contract was fair and reasonable, and liberal toward defendant, made upon adequate consideration, is certain in its terms, and was evidently fully and correctly understood at the time by the defendant. Glass v. Rowe, 103 Mo 535; Ostrander v. Weber, 114 N.Y. 95; Hollister v. Stewart, 111 N.Y. 659; Baumann v. Pinckney, 23 N.E. 918; Crary v. Smith, 2 N.Y. 62; 22 Am. and Eng. Ency. of Law, 913, 915 and 941. (2) The contract is not without consideration. It is a proposition extending through such a period as was needful to the consummation of the plan of marketing town lots and "being under seal must be regarded as made upon a sufficient consideration, and therefore, one from which defendant was not at liberty to recede." Willard v. Taylor, 8 Wall. 557; O'Brein v. Boland, 44 N.E. 602. (3) There is mutuality in the contract. It is executed by appellants as well as respondent, and binds them to pay a certain sum for the real estate in controversy. The only possible point open to question lies in the fact that the time of performance is left optional with appellants. Of this difficulty, if it be one, it laid within the power of respondent to relieve himself, if he chose to want performance or to terminate his obligation, by tendering his deed and demanding performance within some reasonable, designated time. Having failed to do this, he can not complain that appellants did not choose sooner to demand performance. Pomeroy on Spec. Perf., sec. 395; Waterman on Spec. Perf., sec. 465; Mastin v. Grimes, 88 Mo. 484; Warren v. Castello, 109 Mo. 343; In re Ferguson's Estate, 124 Mo. 584. (4) Respondent is understood to contend that the property has increased in value, and hence performance is unjust. Some increase was anticipated by the parties. If the actual increase has exceeded the estimate then made, that circumstance furnishes no ground for the interference with the arrangement of the parties. The question in such cases always is, was the contract, at the time it was made, a reasonable and fair one? If such were the case, the parties are considered as having taken upon themselves the risk of subsequent fluctuations in the value of the property, and such fluctuations are not allowed to prevent its specific performance." Willard v. Taylor, 8 Wall. 557.
W. Cloud for respondent.
(1) The rule of performance is based upon the evident intention of the parties and gives a reasonable construction to all contracts. Lafayette Building Ass'n v. Kleinhoffer, 40 Mo. 388; Belch v. Miller, 32 Mo.App. 387; Hall v. School District, 24 Mo.App. 213. (2) The conduct of the defendant, subsequent to the signing of the option, is evidence concerning his state of mind at the time. Believing all the time that he had simply given the plaintiffs a refusal of the property, which he might retract at any time, and afterward did so informally, he set about improving his home, adding such comforts as were essential, and expending in this manner more than he was to receive for the property. In this idea he was encouraged by the silence of the plaintiffs. Isaacs v. Skrainka, 95 Mo. 523; Dunn v. White, 63 Mo. 181; McElroy v. Maxwell, 101 Mo. 294; Fry on Spec. Perf., sec. 432; Frisby v. Ballance, 4 Scammon, 287. (3) The agreement is a naked option. The amount paid for the adjoining twenty acres was a fair price, and the transaction was fully consummated. The option is wholly independent of the other trade, and no consideration whatever was given for the promise. Such an agreement can not be enforced. Ring v. Kelly, 10 Mo.App. 411; Bean v. Burbank, 16 Me. 458; Anderson v. Green, 7 J. J. Marshall, 448; 1 Pomeroy, Eq. Jur., sec. 383. (3) Mutuality of obligation and remedy are wanting. The defendant alone is bound to the will of the plaintiffs in this case, and such an offer may be retracted at any time prior to its acceptance. Waterman on Spec. Perf., sec 196; Glass v. Rowe, 103 Mo. 513; Eskridge v. Glover, 5 Stewart and Porter, 264.
This is a suit for specific performance. The agreement, which forms the basis of the action is contained in the following paper:
A deed was made by Petty and wife, on the same day upon which the contract was executed, conveying to the parties named above, four-fifths of the west half of the forty acres described in said writing. Defendant testified that said deed was made about one hour before he signed the contract above set out. Plantiffs' testimony goes to show, upon the contrary, that the deed and contract were executed at the same time.
Porter, one of the contracting parties, assigned his interest to Wm. A. McCanse, who joins as plaintiff herein.
A decree enforcing the agreement as to the east half is the relief sought in this case. The parts of the written contract applicable thereto are in italics.
There is no controversy here about the west half of the tract of land. After the conveyance by Petty, it was divided into lots, a plat filed on September 14, 1888, and said lots offered for sale.
Defendant, in August, 1888, was the owner of the forty acres of land above described, and the same together with a tract containing a similar quantity lying east of it, constituted his homestead. He was a farmer, nearly seventy years of age, and had lived there a long time.
There were two mining plants on the land adjoining his on the west. Several of the plaintiffs visited him at his home on the third of August, 1888, and tried to buy the entire forty acres. He declined to sell at all, but did agree to convey to them four-fifths interest in the west twenty. There seems to be a difference of opinion as to whether any arrangement was made at that time concerning the disposition of the other half of the tract. His house and improvements were on the east twenty, over which this litigation arises. Plaintiff went to town the next day, by appointment, and executed the deed to the west half, received the consideration therefor, $ 640, and signed the agreement hereinbefore set out...
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