Lanitz v. King
| Citation | 6 S.W. 263,93 Mo. 513 |
| Parties | Lanitz, Appellant, v. King |
| Decision Date | 19 December 1887 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. A. M. Thayer Judge.
Affirmed.
T. K Skinker for appellant.
(1) The time for the payment of the price was, by mutual consent extended until respondent should remove the defect in his title, or appellant consent to take a warranty deed with such defect. (2) "Where an agreement, in writing, is to be performed on a certain day, and the parties agree to enlarge the time, the declaration, on the day stated in the agreement, though the evidence is of a different day, will support the action." Thresh v. Rake, 1 Esp. 53; Russell v. Insurance Co., 55 Mo. 585; Insurance Co. v. Kyle, 11 Mo. 278; Lawrence v. Dole, 11 Ver. 549; Elfranks v. Seiler, 54 Mo. 134. (3) Where an action is brought upon a written contract, required to be in writing by the statute of frauds, and the performance thereof has been extended by an oral agreement, or waived by the conduct of the parties thereto, the proof by the plaintiff of such oral agreement, or waiver, and the performance by him thereof, or of his offer and readiness to perform, is not considered a variance from the declaration, nor as making the same obnoxious to the provisions of the statute; and the action is required to be brought upon the written contract, and not upon the same as modified by the oral agreement. Browne on Stat. of Frauds (Ed. 1870), secs. 423, 424, 425; Cummings v. Arnold, 3 Met. (Mass.) 489; Stearns v. Hall, 9 Cush. (Mass.) 31; Lerned v. Wannemacher, 9 Allen (Mass.) 418; Whittier v. Dana, 10 Allen (Mass.) 326; Thresh v. Rake, 1 Esp. 53; Neil v. Cheves, 1 Bailey (S. C.) 537; Phillips on Evid. (5 Am. Ed.) 694; Cuff v. Penn, 1 M. & S. 21; Russell v. Ins. Co., 55 Mo. 585; Ins. Co. v. Kyle, 11 Mo. 278.
Geo. D. Reynolds for respondent.
(1) While the authority of an agent to sell land need not be in writing, his authority to sign a memorandum of the contract must be shown. Browne on Statute of Frauds (4 Ed.) section 370; Stewart v. Wood, 63 Mo. 252; Duffy v. Hobson, 40 Cal. 240. (2) A court of equity will not enforce a doubtful title on a purchaser. (3) The respondent denies any new contract was made as claimed by plaintiff, but, if such was the case, such new contract is within the statute of frauds, and is not shown to have been reduced to writing. It concerns land, and is, therefore, void. 1 Smith's Lead. Cas., top page 575; Wildbahn v. Robidoux, 11 Mo. 659; Miltenberger v. Morrison, 39 Mo. 71. (4) It is a conclusive defence for respondent that the defect in the title was not cured when the suit was brought. (5) Plaintiff cannot sue for non-performance of the original contract and rely on its waiver.
Lanitz brought this suit against Chas. E. King, to recover damages for alleged breach of contract for the purchase of real estate. Plaintiff declares upon a written contract, and states that defendant executed the same by his authorized agent, Edgar Miller. The contract sued upon, and read in evidence, omitting the description of the property, is as follows:
The petition further states, that plaintiff has, at all times, been ready and willing to carry out the contract; that he tendered to defendant the balance of the purchase price, namely, $ 9,950, and demanded a deed, and that the defendant refuses to execute and deliver to him a deed to the property. The defendant answered, first, by way of a general denial, and, among other things, he states that the contract sued upon is not his act, and that Miller was not authorized by him to make the same, or any such a contract. In other defences, he admits that there was a negotiation between him and the plaintiff, which resulted in a verbal agreement, to the effect that if the title was satisfactory to the plaintiff, then defendant would make a warranty deed and plaintiff would pay therefor ten thousand dollars, less fifty dollars, deposited with Miller, within two weeks from the twenty-fifth of February, 1881. He alleges that plaintiff was not satisfied with the title, and refused to take the property, and that the plaintiff did not tender, or offer to pay, the purchase price within the two weeks, and that the option was verbal and void by reason of the statute of frauds, and has been abandoned by both parties.
The evidence for the plaintiff tends to show that Miller, who was a real estate agent, found the plaintiff, Lanitz, and took him to King, the defendant, and, after some dickering, they came to an agreement. Lanitz then offered King fifty dollars, but King said to give it to Miller, who would give him a receipt therefor. Lanitz and Miller then went to the latter's office and Miller executed the receipt in question, which appears to express, in substance, the agreement of the parties. It appears that the property had descended from Willis King, and that the other heirs conveyed to the defendant in order that he might sell it for all of them, he being one of the heirs. Debts had been allowed in the probate court, to the amount of two thousand dollars, against the estate of Willis King, and as these debts had not been paid, the property was liable to be taken in discharge of them. Plaintiff was not satisfied with the title, and there is evidence tending to show that King said he would have the debts settled. Miller and Lanitz had several conversations during the year, and finally Miller dropped the matter. Lanitz says he had repeated conversations with King, in which King said he expected to have the matter fixed up. Mr. Lanitz endeavored to make it appear that he did not refuse to take the property, but his examination, as a whole, shows clearly that he did not, for a year or more, intend to take the property until the debts were discharged. In October, 1882, Lanitz tendered King the $ 9,950 and demanded a deed, which the defendant refused to make. The title had not been perfected at the trial of this cause.
The court sustained a demurrer to the evidence, and the plaintiff appealed. Assuming that the evidence tends to show that Miller had authority to make the contract, which it does, and that the stipulation in the agreement, that, if the...
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