Barthel v. Engle

• Decision Date: 14 July 1914
• Citation: 168 S.W. 1154,261 Mo. 307
• Parties: DALE E. BARTHEL et al., Appellants, v. JESSE D. ENGLE
• Court: Missouri Supreme Court

168 S.W. 1154

261 Mo. 307

DALE E. BARTHEL et al., Appellants, v. JESSE D. ENGLE

Supreme Court of Missouri, Second Division

July 14, 1914

Appeal from Dallas Circuit Court. -- Hon. C. H. Skinker, Judge.

Reversed and remanded (with directions).

James H. Richardson, W. N. Finley and Fyke & Snider for appellants.

The court erred in rendering judgment in favor of defendant for a one-fifth interest in the land because there was no evidence to support such judgment and because it is outside the issues raised by the pleadings. Ford v. Gebhardt, 114 Mo 298; Hill v. Mining Co., 119 Mo. 27; Blaine v Knapp, 140 Mo. 251; Gibson v. Cranage, 39 Mich 49; Zaliski v. Clark, 44 Conn. 218; Printing Co. v. Thorpe, 36 F. 414; Walker v. Auto Co., 124 Mo.App. 636; 36 Cyc. 789.

John S. Haymes, O. H. Scott and Levi Engle for respondent.

The court properly rendered judgment for defendant for one-fifth of the land; for where a party contracts to sell more than he has, the purchaser is entitled to the performance to the extent of the interest of the party contracting. Lucket v. Williamson, 31 Mo. 58; McGhee v. Bell, 170 Mo. 132; Lamyon v. Chesney, 186 Mo. 556; Bales v. Roberts, 189 Mo. 66.

WILLIAMS, C. Roy, C., concurs.

OPINION

WILLIAMS, C

This is an action in ejectment to recover possession of one hundred and sixty acres of land in Dallas county, Missouri. One Harmon Barthel, grandfather of plaintiffs, died about 1892, seized of the fee simple title to the land in question and left surviving him as his sole and only heirs his widow, four sons and three grandchildren. The widow died in 1907. The three grandchildren are the plaintiffs in this suit and are the only children of one of the sons of said Harmon Barthel, said son having died a short time before the death of said Harmon Barthel. The four sons of Harmon Barthel who survived him were Alvin W., Herman J. C., Julius H., and Oscar H., none of whom are parties to this suit. On April 12, 1910, the above-named grandchildren obtained, by quitclaim deed, all the right, title and interest of the other above-named heirs in and to this land. The evidence on the part of plaintiffs further tended to show that in August, 1910, one of the plaintiffs, then living in Illinois, made a trip to Dallas county, Missouri, on behalf of himself and his sisters, to see the land, and found the defendant in possession of the same. The witness asked defendant why he was in possession of the land and the defendant replied that he had the right of possession by reason of a contract to purchase. Defendant refused the request to show said contract. Demand for peaceable possession was thereupon made but defendant refused to give up possession and thereafter this suit was instituted.

The petition in this case was in the usual form. The answer, after admitting possession in the defendant, pleaded a general denial. The answer further alleged that defendant entered into a contract with the plaintiffs and the other above-named heirs by which they agreed to sell said land for a consideration of $ 1600 and that defendant was in possession of said land under and by virtue of said contract of purchase; that defendant ever since the making of said contract was ready and willing to pay said purchase price upon the delivery to him of proper deeds, conveying the legal title of said property to him; the answer further alleged that Alvin W., Herman J. C., Julius H., and Oscar H. Barthel undertook, by a quitclaim deed dated April 12, 1910, to convey their interest in said land to plaintiffs, and that plaintiffs, at and prior to said date, knew of defendant's aforesaid contract for the purchase of said land. The prayer was for specific performance of said contract.

The evidence on the part of defendant was to the following effect: On July 18, 1909, Herman J. C. Barthel, residing in Illinois, then the owner of an interest in said land, by reason of being one of the heirs of said Harmon Barthel, deceased, wrote a letter to Mr. N. Finley, of Cloverdale, Missouri, in which he stated: "The place is for sale. Do you think you could find a buyer for it? If there is any one that wants to buy the place let me know and I will see that I or one of the heirs will be there to sell it." Mr. Finley thereupon saw the defendant and defendant made an offer of $ 1500 for the land. Finley wrote to Herman Barthel concerning defendant's offer. In replying to this letter, Herman Barthel wrote Finley, under date of November 29, 1909, in part as follows: "Received your letter a few days ago and was glad to hear from you. In regard to the farm you said the man offered $ 1500 -- Fifteen Hundred Dollars for the place, but you think you can get $ 1800 or $ 1850; well then I had better put the price $ 2000 and if you can't get that you can shade it $ 100 to $ 150 to make it the $ 1850, which you say you think you can get."

After this Finley again saw the defendant and defendant made an offer of $ 1600 for the place and Finley submitted this offer by letter to the said Herman Barthel. In this last letter Finley enclosed a blank deed containing a correct description of the land. On December 27, 1909, Herman again wrote Finley, in part as follows: "Received your letter a few days ago and was glad to hear from you. Must have been delayed some as it has sometime since it was wrote. Will hear from the other heirs in a week or ten days and can tell if the offer is all O. K. to them, if so, will have the papers drawn up but think ought to have $ 1700 anyway to leave us out." On January 17, 1910, Herman again wrote to said Finley, in part as follows:

"Mr. Finley if that offer is good yet on the farm let me know by return mail. It takes quite a while to get mail this winter as the R. R. are blocked so much. The heirs are all willing to sell I think; there is one that I haven't heard from yet; he is in Minn. some place and can't get him located as yet but hope to in a few days and as soon as we or I do I will turn the matter over to my brother Alvin S. Barthel, at Milledgeville, Ill., and he can tend to it better and quicker than I can as I am quite a ways from the P. O. and when you write me again I will let him know right away what you said in your letter and I will send the papers to him today what you sent to me."

Finley thereupon wrote Herman that the offer was still good. Witness Finley further testified that after that time he received another letter from Herman Barthel but that the letter had become lost or destroyed. Upon proper showing the court permitted the witness to testify to what was said in this lost letter and Mr. Finley testified that Herman Barthel in his letter said: "Us four are willing to take the bid," or "Us four are will to take the $ 1600 for the land." The witness testified further concerning the contents of this lost letter as follows: "He said his brother in Minnesota wrote and it was all O. K. and they would take the $ 1600 for the farm. He said he had heard from his brother in Minnesota; that he had wrote to him; and they was all willing to sell and they would accept the proposition." And further: "He was hunting the heirs up and he said that four of them was willing to sell for that."

The defendant testified that he saw this letter which was afterwards lost and that in that letter Herman wrote: "I got a letter from my brother in Minnesota and he is willing to accept the offer of $ 1600 for the land." Defendant further testified in this regard: "He said he would hurry the matter up as fast as he could as the heirs were scattered...