Aiple-Hemmelmann Real Estate Company v. Spelbrink
| Decision Date | 13 May 1908 |
| Citation | 111 S.W. 480,211 Mo. 671 |
| Parties | AIPLE-HEMMELMANN REAL ESTATE COMPANY v. LOUIS SPELBRINK, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis County Circuit Court. -- Hon. Jno. W McElhinney, Judge.
Reversed and remanded (with directions).
R. M Nichols for appellant.
(1) The testimony shows that it was the intention of the parties to reduce the contract shown in evidence to writing, and sign the same "in triplicate," and the written instrument shows upon its face that it was to be executed "in triplicate" before being binding upon either and until so executed, it was inchoate; it was not admissible in evidence for any purpose, not even against the party executing it, and the objection to it should have been sustained. Greene v. Cole, 103 Mo. 70; Crane v. Portland, 9 Mich. 493; Waggermann v. Bracken, 52 Ill. 468; Miss. & D. S. S. Co. v. Swift, 86 Me. 248; Arnold v. Scharbauer, 116 F. 493; Goodenow v. Gunn, 21 Me. 91; Barber v. Burrows, 51 Cal. 404; Mattoon v. Barnes, 112 Mass. 463; Wilcox v. Saunders, 4 Neb. 569; Hodges v. Sublette, 91 Ala. 588; Vastbinder v. Metcalfe, 3 Ala. 100; Wettenkamp v. Billigh, 27 Ill.App. 585; Williamson v. Heavenrich, 58 Mich. 579; Stensgard v. Smith, 43 Minn. 11; Osborn v. Holland, 11 Tex.App. 1087; Keating v. Nelson, 33 Ill.App. 557; Howard v. Carpenter, 11 Md. 259. (2) The contract being inchoate, without the plaintiff's signature, Spelbrink had a right to withdraw therefrom and return the check. Plaintiff's failure to sign the contract, which provided for the execution "in triplicate," was a breach of the oral agreement, of which the writing was intended as a consummation. Bloeker v. Tillman, 4 La. 77; Villere v. Brogaur, 3 Martin (La.) 349. (3) Specific performance of contracts unilateral in form is granted because it was the intention of the parties to create a unilateral instrument, but where a contract is of such a form and nature that it contains mutual executory promises, or where it is intended that it shall require future acts or omissions from each of the parties, and that each should be bound to such acts or omissions, by express undertakings, then in all such agreements there must be both mutuality of obligation and remedy. Pomeroy on Contracts (Ed. 1897), sec. 169; Glass v. Rowe, 103 Mo. 513; Warren v. Castello, 109 Mo. 338; Jones v. Williams, 139 Mo. 87; Stanton v. Singleton, 126 Cal. 657; Cowan v. Curran, 216 Ill. 598; Liscomb v. Adams, 193 Mo. 546. (4) A court of equity will not decree specific performance of the contract because the wife did not join therein. The testimony shows that the plaintiff knew at the date of the contract that the defendant had a wife. The inference would be that the plaintiff intended to purchase only the interest of the defendant. The petition makes no averment or claim of reduction of purchase price on account of outstanding inchoate dower. There was no fraud alleged or proven warranting a deduction on account of inchoate dower. The decree allowing a deduction on account of inchoate dower is therefore not warranted by the averments or the law. Riley v. Smith, 25 N.J.Eq. 158; Fraharty v. Blake (N. J.), 10 A. 158; Hawralty v. Warren, 18 N.J.Eq. 124; Peeley v. Levy, 26 N.J.Eq. 330; Clark v. Seirer, 7 Watts 107; Lucas v. Scott, 41 Oh. St. 636; Shoonmaker v. Bennie, 119 N.Y. 565; Sternberger v. McGovern, 56 N.Y. 12; Roos v. Lockwood, 66 S.Ct. (N. Y.) 181; Bonnet v. Babbage, 19 N.Y.S. 934; Riesz's App., 73 Pa. St. 485; Burk's App., 75 Pa. St. 141; Burk v. Serrill, 80 Pa. St. 413; Hill v. Jones, 152 Pa. St. 433; Weller v. Weyand, 2 Grant's Cas. 103; Richmond v. Robinson, 12 Mich. 193; Phillips v. Staunch, 20 Mich. 369; Yost v. Devault, 9 Iowa 60; Fortune v. Watkins, 94 N.C. 304; Graybill v. Brauch, 89 Va. 895; Cowan v. Kane, 211 Ill. 572. (5) The court can not measure the value of inchoate dower by mortuary tables. Besides, the petition is not framed for damages in compensation for defects, or in lieu of specific performance. Yost v. Devault, 9 Iowa 60; Cowan v. Kane, 211 Ill. 571; Kauffman v. Peacock, 115 Ill. 212; Millmore v. Murphy, 65 N.J.Eq. 767. (6) The testimony shows that on January 17, when the written contract upon which suit was brought was obtained from defendant, the plaintiff was acting as agent of defendant for the sale of the property under a written commission expiring January 20. And in the contract upon which suit is brought defendant agrees to pay plaintiff a commission for his services as agent in acting for defendant. Plaintiff confesses that when it obtained the contract sued upon, tendered the money, demanded the deed, executed the notes for the deferred payments, brought this suit, it was acting as agent for the "Brothers of Mary." This double agency would render the contract in suit voidable if not void, and unless intelligently and unequivocally ratified by defendant, the contract which was the result of such double agency could not be specifically enforced. McElroy v. Maxwell, 101 Mo. 309; Marsh v. Buchan, 46 N.J.Eq. 595; Robinson v. Jarvis, 25 Mo.App. 421; Chapman v. Currie, 51 Mo.App. 45; Smith v. Carroll, 66 Mo.App. 8; Pomeroy's (Specf. Per. of) Contracts (2 Ed.), secs. 285-6-7; Lewis v. Walker, 61 Mo.App. 54; Louthman v. Stillwell, 73 Mo. 499; 26 Am. and Eng. Ency. Law (2 Ed.), 22; 1 Ib., 1073; Casey v. Donovan, 65 Mo.App. 561; Henninger v. Heald, 46 N.J.Eq. 431. (7) There was no ratification of this voidable contract pleaded. The testimony does not show a ratification. The most that can be said of defendant's knowledge of plaintiff's representation of the "Brothers of Mary" was that plaintiff was looking for a site for the "Brothers of Mary" and that the written contract was taken by the plaintiff for the "Brothers of Mary." With all of this knowledge defendant was not warranted in believing that plaintiff was actually enlisted in the interest of persons who were trying to get his property on the best terms possible and for the smallest possible amount. The ratification of the double agency required by the law in this case is that it must have been of the most unequivocal manner. It must have been by the defendant's free and intelligent consent. Marsh v. Buchan, 22 A. 128; Mercantile Ins. Co. v. Hope Ins. Co., 8 Mo.App. 408; Smith v. Tyler, 57 Mo.App. 668; Candy Co. v. Ins. Co., 41 Mo.App. 530; Meyer v. Winchett, 43 Wis. 246; Lynch v. O'Fallon, 23 Am. R. 458. (8) The fact that plaintiff was not to be paid for services by the "Brothers of Mary" does not any the less constitute them agents of the proposed purchaser, because agency can exist without remuneration. 1 Am. and Eng. Ency Law, 1060, 1070. (9) Looking at the paper writing as a contract of purchase and sale between plaintiff and defendant, under the facts of the case, it then constitutes an open attempt of the agent to purchase the property of his principal, the specific performance of which contract no court of equity ought to enforce. Clark & Skyles on Agency, sec. 415 p. 932; McElroy v. Maxwell, 101 Mo. 308; Grumbly v. Webb, 44 Mo. 444; Rea v. Copeland, 47 Mo. 77; Murdock v. Miller, 94 Mo. 96; Chinnock v. Sainsbury, 30 L. J. (N. S.) 409; Flannigan v. Railroad, 7 Eq. Cas. (L. R.) 121; Hesse v. Brent, 6 De. G., M. & G. 623; Minor v. Ice Co., 93 Mich. 97; Fry on Specf. Perf. (3 Ed.) sec. 276, p. 175; Fish v. Lessor, 69 Ill. 400; Tyler v. Sanborn, 128 Ill. 136; Pomeroy's Eq. Juris. (1 Ed.), sec. 959; Pomeroy on Contracts (2 Ed.), 48; Gardner v. Ogden, 22 N.Y. 349; Veazie v. Williams, 49 U.S. 8; Dwight v. Blackmer, 57 Am. Dec. 133; North Balt. Bldg. Assn. v. Caldwell, 25 Md. 423; Moore v. Moore, 4 Sandf. Ch. 48; Sweet v. Jacocks, 6 Paige 355; Trice v. Comstock, 121 F. 620.
Kortjohn & Kortjohn for respondent.
(1) We of course, do not deny the proposition that a contract which has not been completed is not binding on either of the parties thereto. But our contention is that this contract is strictly a unilateral one, because the appellant for a consideration agreed to convey his land, if the purchase price was paid or tendered to him within forty-five days. There was nothing for the respondent to do except to tender the money if he decided to purchase under the option. The mere fact that the contract was to be signed in triplicate can make no difference because, if the respondent had signed it, it would not have assumed any obligation whatever. Besides this, there can be no question that both the appellant and respondent looked upon it as a complete contract. (2) The law in this State is, that a unilateral contract for the sale of real estate will be specifically enforced if the person to be charged signed the same for a valuable consideration. Smith v. Wilson, 160 Mo. 157; Warren v. Costello, 109 Mo. 338; Mastin v. Grimes, 88 Mo. 478. (3) Respondent never demanded of appellant that his wife should sign the deed before it would pay him the money. The tender made to appellant was unconditional. Respondent is willing, and always has been willing, to take such a title as appellant can convey. It was well aware of the fact that the court could make no decree against the appellant's wife, as she was neither a party to the contract, nor a party to the suit. But in Missouri, as well as in other jurisdictions, the rule is that a deduction may be made from the purchase price in a suit for specific performance, to the extent of the vendor's inability to perform his contract to convey free from liens and encumbrances. Rector v. Price, 1 Mo. 373. Before the decree in this case was entered, this honorable court decided the case of Kilpatrick v. Wiley, 197 Mo. 123. Relying on this authority, the court below made the decree deducting from the purchase price the value of Mrs. Spelbrink's inchoate right of dower. In its action in this respect, the trial court was...
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