Aiple-Hemmelmann Real Estate Co. v. Spelbrink.

• Citation: 111 S.W. 480,211 Mo. 671
• Parties: AIPLE-HEMMELMANN REAL ESTATE CO. v. SPELBRINK.
• Decision Date: 13 May 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 480

211 Mo. 671

AIPLE-HEMMELMANN REAL ESTATE CO. v. SPELBRINK.

Supreme Court of Missouri.

May 13, 1908.

1. VENDOR AND PURCHASER—OPTION TO BUY —CONTRACT—CONSTRUCTION.

An agreement between defendant and plaintiff company, agent, recited that defendant, in consideration of $50 paid by plaintiff, granted to plaintiff the option for 45 days to purchase certain real estate for $20,000, and that if plaintiff within the period accepted the proposition of defendant to sell the real estate, and agreed to take the same at the price stated, then defendant bound himself to execute a sufficient conveyance therefor. Held, that the contract was a mere option, unilateral in character, and did not indicate that it was the intention of the parties that plaintiff should execute the same or bind itself to do more than pay the consideration for the option.

2. SPECIFIC PERFORMANCE—UNILATERAL CONTRACT.

A court of equity will specifically enforce a unilateral written contract for the sale of land based on a valuable consideration.

3. SAME—HUSBAND AND WIFE—WIFE'S REFUSAL TO JOIN.

Defendant, a married man, gave plaintiff an option to purchase certain land in controversy, plaintiff at the time having knowledge of the fact that defendant was married. The wife at all times absolutely refused to join in a conveyance of the land with her husband uninfluenced by him. The contract provided that on payment of the price defendant would deliver plaintiff a warranty deed conveying to it the property in controversy clear of incumbrances, liens, or adverse titles. Held, that plaintiff, on refusal of both husband and wife to convey, was entitled to a decree of specific performance as against the husband requiring him alone to execute a warranty deed to the entire property on payment by plaintiff to him of the entire consideration without deduction for the value of the wife's dower interest.

4. COVENANTS—WARRANTY—BREACH.

Where a purchaser accepted a deed of land belonging to a husband in which the wife refused to join, the purchaser became the owner of the fee and entitled to possession until the wife's demand for dower in case she survived her husband, until which time there would be no substantial breach of the husband's covenants of warranty.

5. SAME—ACTION AGAINST GRANTOR'S ESTATE.

Where a husband conveyed land by a warranty deed in which his wife did not join, the vendee, on being subsequently evicted in a proceeding by the wife to recover dower on her surviving her husband, would then be entitled to sue the husband's estate for breach of covenant, and recover the value of the wife's dower interest.

6. VENDOR AND PURCHASER—CONTRACT— BREACH.

Where a husband contracted to convey land free from all incumbrances, but was unable to procure a release of his wife's dower, the purchaser, if he did not choose to accept the husband's deed alone with covenants of warranty and take possession thereunder until evicted by the grantor's widow in case she survived him, had only the alternative of repudiating the entire contract and suing the husband for compensatory damages.

7. SPECIFIC PERFORMANCE—RIGHT TO RELIEF.

Specific performance will not be decreed in case of fraud, mistake, or of hard and unconscionable bargains, or where the decree will produce injustice, or in any case where it will be inequitable under all the circumstances.

8. SAME—RELIEF AWARDED.

Where, in a suit for specific performance, plaintiff did not demand a deduction from the purchase price of the value of the inchoate right of dower of the grantor's wife, who refused to join in the deed, such relief was improper under the prayer for general relief.

9. PRINCIPAL AND AGENT—SALE OF LAND—AGENT FOR BOTH PARTIES.

Where defendant, at the time he executed a contract for the sale of certain land to plaintiff, had knowledge that plaintiff was acting not only as defendant's agent for the sale of the land, but also as agent for the purchaser, the contract was not rendered invalid by reason of such dual agency.

Fox, Lamm, and Graves, JJ., dissenting.

In Banc. Appeal from St. Louis Circuit Court; John W. McElhinney, Judge.

Suit by Louis Spelbrink against the Aiple-Hemmelmann Real Estate Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The following is the opinion of WOODSON, J., in Division No. 1:

This action originated in the circuit court of St. Louis county, and has for its object the specific performance of a written contract for the sale of certain real estate located in said county, executed by the defendant in favor of the plaintiff, a corporation, agent. The petition was in the usual form, stating the substance of the contract, a tender of consideration agreed upon, and ended with a prayer for a decree in conformity with the terms of the contract and a prayer for general relief. The answer was, first, a general denial. Second, that, on December 23, 1905, defendant constituted plaintiff, by written commission, his agent for the sale of the real estate described in the petition, which authority expired January 20, 1906; that during the existence of said authority, and on January 17th, plaintiff applied to defendant for the extension of said authority to sell the property for a period of 45 days, and requested the defendant to come to plaintiff's office and sign a paper extending such authority; that defendant went to plaintiff's office, and thereupon plaintiff produced the paper writing filed as an exhibit to plaintiff's petition, and requested the defendant to sign it, and that, through its officers, plaintiff then and there represented to the defendant that said paper writing had the meaning and legal effect of extending plaintiff's authority to sell the property; that, believing said representations, defendant signed the paper; that prior to signing the said paper, upon reading the same, defendant noticed that the paper bound him to sell the property for $20,000; that thereupon defendant remonstrated with the plaintiff, and plaintiff, in order to induce defendant to sign the same, represented that it would procure $22,000 for said property if defendant would sign the paper and grant plaintiff an extension of authority to sell the property; that at the time defendant notified plaintiff that he would sign the same, provided his wife would consent to sell the same for $20,000, but that his signature to the said paper was on condition that his wife would consent to sell the property for that price; that thereafter, and after signing said paper, he consulted his wife, who refused to consent that the property be sold for that price, and refused to join in the sale of the said property at the price of $20,000; that defendant notified plaintiff of his wife's decision, and further notified plaintiff that he elected to revoke the authority to sell said property as contained in said paper writing filed as an exhibit to plaintiff's petition, and thereupon returned to plaintiff the check which had been by plaintiff placed with the defendant as the consideration for the extension of the said authority. Further answering, defendant averred that at the time the plaintiff was acting for him in the sale of said property, and without the knowledge and consent of the defendant, the plaintiff was also acting for an association or society known as the "Brothers of Mary" in endeavoring to purchase the said property for them, and that when the contract was signed by defendant the plaintiff was acting for the Brothers of Mary. For another answer, defendant averred that neither under the authority of December 23, 1905, nor the alleged contract under which this suit was brought, did plaintiff enter into any binding contract in writing with the Brothers of Mary for the sale or conveyance of said property, but that, if such contract existed with the Brothers of Mary, it was a mere verbal understanding, which could not be enforced by the defendant. The plaintiff met the answer with a general denial.

The case came on for trial before the court on June 28, 1906, and, after hearing the testimony, the ordinary decree of specific performance was entered on July 23, 1906, interlocutory in its nature, parts of which are as follows: "It is further ordered, adjudged, and decreed that if the defendant is unable or for any reason fails to procure the release to the plaintiff of his wife's inchoate dower right in said real estate, then the value of the said right shall be ascertained at a time to be fixed by this court, and deducted from the purchase price of the said real estate according to the terms of the said contract dated January 17, 1906, and the cash as well as deferred payments to be made by the plaintiff shall in such case be proportionately reduced. It is further ordered, adjudged, and decreed that if the defendant fails or refuses before the 6th day of September, 1906, to execute and deliver unto the plaintiff such deed of conveyance of said real estate, clear of incumbrance, and with release of inchoate right of dower as aforesaid, then the plaintiff and defendant shall appear in this court on the said 6th day of September, at 9:30 a. m. of that day, and in court, and under its direction, exchange deeds, money, and notes as hereinbefore required; and, in case there shall be no release of the inchoate right of dower of defendant's wife, the court shall thereupon on said day, or at some later day which may be designated therefor, hear the evidence upon and determine the value of the said inchoate dower interest, and the amount of cash and notes to be paid and delivered by the plaintiff, in accordance with this decree. * * *"

Afterwards, and on September 6th, a final decree was entered, parts of which, so far as material, are as follows: "And the defendant then and there in open court refuses to convey the real estate described in the decree herein, entered on the 23d day of July, A. D. 1906, and refuses to perform any of the matters and things required...