85 S.W. 568 (Mo. 1905), Lanyon v. Chesney

Citation:85 S.W. 568, 186 Mo. 540
Opinion Judge:FOX, J.
Party Name:LANYON et al. v. CHESNEY et al., Appellants
Attorney:W. R. Cowley and E. E. Chesney for appellants. Thomas & Hackney for respondent.
Case Date:February 21, 1905
Court:Supreme Court of Missouri
 
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Page 568

85 S.W. 568 (Mo. 1905)

186 Mo. 540

LANYON et al.

v.

CHESNEY et al., Appellants

Supreme Court of Missouri, Second Division

February 21, 1905

Appeal from Jasper Circuit Court. -- Hon. Hugh Dabbs, Judge.

Reversed and remanded.

W. R. Cowley and E. E. Chesney for appellants.

(1) Motions for judgment on the pleadings are not favored; every intendment, every presumption is against them. McAllister v. Walker, 39 Minn. 565; Carrie v. Railroad, 23 Ore. 400; Dunham v. Byrnes, 36 Minn. 106; Giles, etc., v. Recamier, etc., 14 Daly (N. Y.) 475. (2) Judgment on the pleadings cannot be rendered where the answer denies any material allegation of the petition. Chapman v. Tallant, 1 Kan.App. 799; McCrea v. Leavenworth, 46 Kan. 767; Nudd v. Thompson, 34 Cal. 39; Miller v. Chandler, 59 Cal. 541; Martin v. Porter, 84 Cal. 476; Royal v. Landis, 119 Ind. 479; Willis v. Holmes, 28 Ore. 265; Jones v. Rowley, 73 F. 286. (3) An answer which in any part contains a distinct denial of a fact material to the plaintiff's recovery cannot, whatever its defects, be treated as a nullity so as to entitle the plaintiff to judgment on the pleadings. Ghirardelli v. McDermott, 22 Cal. 539; Briggs v. Ghotes, 14 N.H. 262; Roark v. Miller, 3 Wash. 73; Hancock v. Herrick, 29 P. 13. (4) By submitting a case on petition and answer, the petitioners admit the truth of the facts set up in the answer. People v. Johnson, 95 Cal. 471; Taylor v. Pierce, 53 N.E. 622; Kemper v. Berkley, 79 Mo.App. 584; Hann v. Tramor, 42 A. 367; Clark v. Kingsley, 142 Pa. St. 636; Stewart v. Erie, etc., Co., 17 Minn. 373. (5) If a legal or an equitable defense is stated, a motion for judgment will be denied. Class v. Kingsley, 142 Pa. St. 636. (6) A motion for judgment notwithstanding the answer is equivalent to a general demurrer that the facts stated were not in law a defense to the cause of action, but if the defendant traversed any of the facts set up in the petition and which upon trial the plaintiff would be required to prove when denied, the answer could not be stricken out. Wales v. Chamblin, 19 Mo. 500; Burrall v. Moore, 5 Duer (N. Y.) 654; Taylor v. Palmer, 31 Cal. 257. (7) Under the civil code the defendant may plead an equitable defense in an action at law. McCollum v. Boughton, 132 Mo. 601; Sachleban v. Heintze, 117 Mo. 520; Beatie v. Coal Co., 56 Mo. 229; Northrup v. Gas Co., 47 Mo. 435; Glasscock v. Minor, 11 Mo. 655; Parker v. Clark, 57 Mo. 189; Man v. Work, 2 Ark. 229; McFarland v. Carver, 34 Mo. 195. (8) Where, as in this case, a vendor and vendee have contracted, the vendor to convey by a good and sufficient warranty deed, and the vendee to pay the purchase price -- this simply -- or even where the vendor covenants to convey upon the payment of the purchase price by vendee, there are concurrent and dependent covenants, the covenant of vendor runs with and is dependent on the covenant of the vendee, and conversely, and neither can proceed against the other without himself performing or tendering performance before suit. Deitrick v. Frantz, 47 Mo. 85; Wellman, Admr., v. Dismukes, 42 Mo. 101; Hes v. Ellidge, 18 Kan. 296; Morrison v. Terrell, 27 Kan. 326; Soper v. Gabe, 55 Kan. 641. (9) The undertakings of vendor and vendee are ordinarily dependent, and to entitle the vendor to recover the purchase-money, he must aver in his petition a performance or an offer to perform on his part, and sustain it by proof. Cress v. Blodgett, 64 Mo. 541; Bowland v. Gickles, 26 Ill. 497; Bank v. Hagner, 1 Peters 455. (10) "A mere averment of readiness and willingness to convey is not sufficient unless the payment of the purchase-money is a condition precedent to the right to a conveyance (which is the opposite in the case at bar), in which last case only an allegation of the vendor's readiness and willingness to convey on payment of purchase-money is sufficient." Jackson v. Speed, 2 Dwy. (Ky.) 426; Robinson v. Harbour, 42 Minn. 795. (11) The averments of the petition must show the kind of deed tendered, with proffer thereof, that the court may pass upon the nature of said deed. Minor v. Edwards, 10 Mo. 671; Thomas v. Van Nen, 4 Wend. 549; Bartlett v. Browning, 8 Mo. 693; Verger v. Bock, 44 Mo.App. 78; Peishing v. Canfield, 70 Mo. 144; Deitrick v. Clifford, 68 Ill. 67; Eddt v. Davis, 22 N.E. 362. (12) A court of equity would not force upon a defendant a title in which there is any real defect, but will not hesitate to require him to stand up to his contract when the title offered him is good beyond all reasonable doubt. Scannell v. Soda Fountain Co., 161 Mo. 608; Greffett v. Wellman, 114 Mo. 106; Mitchner v. Holmes, 117 Mo. 185; Davis v. Petty, 147 Mo. 374; Hymers v. Branch, 6 Mo.App. 511. (13) In an action by vendor (as in the case at bar) for specific performance of a contract for the sale of land, the vendee may defend by showing fraud and false representation on the part of the vendor. Isaacs v. Skrainka, 95 Mo. 517; Veth v. Gierth, 92 Mo. 97; Fry, Spec. Perf., par. 432; Durretts v. Hook, 8 Mo. 409; Mastin v. Grimes, 88 Mo. 478. (14) Where a defendant (as in the case at bar) pleads new matter in answer, avoiding the action, and which the plaintiff is not bound to prove in the first instance, it must be met by reply or demurrer. Cordner v. Roberts, 44 Mo.App. 440; State ex rel. v. Rau, 93 Mo. 126; Holke v. Herman, 87 Mo.App. 132; Nelson v. Wallace, 48 Mo.App. 194; Thompson v. Wooldridge, 102 Mo. 505; Turner v. Butler, 126 Mo. 131. (15) When the answer sets up a good defense (as in the case at bar) and no reply is filed, defendant is entitled to judgment on the pleadings. Sec. 607, R. S. 1899; Ennis v. Hogan, 47 Mo. 513; Cordner v. Roberts, 44 Mo.App. 440.

Thomas & Hackney for respondent.

(1) The Spring River Electric Power Company, having been made a party defendant on its own application, and entered its appearance, and having been given leave to plead within a limited time, not having pleaded to the plaintiff's petition within the time limited, the petition was properly taken against it as confessed. (2) It appearing from the answer of Chesney that possession of the property was delivered by Lanyon to him and retained by him and the Spring River Electric Power Company, he could not defeat the payment of the balance of the purchase-money on account of any defect or supposed defect in plaintiff's title, without surrendering or offering to surrender the possession. A vendee cannot, after obtaining possession from the vendor, retain the possession of the property and refuse to pay the balance of the purchase price, even though he gets no title. His duty is to rescind in such case. Pershing v. Canfield, 70 Mo. 140; Smith v. Busby, 15 Mo. 388; Hunt v. Marsh, 80 Mo. 398; Cartwright v. Culver, 74 Mo. 182. While the vendee may defend the action of the vendor for purchase-money by showing that the vendor's title was defective, yet as a condition precedent to the availability of such defense, the vendee must restore or offer to restore possession and yield up the fruits of the contract, which was not done in this case. Harvey v. Morris, 63 Mo. 475; Lockwood v. Railroad, 65 Mo. 233; Pulliam v. Burlingame, 81 Mo. 118. (3) Having obtained possession of the property from Lanyon and retained this possession, the defendants could not avoid the payment of the balance of the purchase-money on account of any fraudulent or supposed fraudulent representations of Lanyon with respect to...

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