Berry v. Royster

• Decision Date: 07 February 1921
• Docket Number: No. 13839.,13839.
• Citation: 232 S.W. 477
• Parties: BERRY v. ROYSTER.
• Court: Missouri Court of Appeals

232 S.W. 477

BERRY v. ROYSTER.

No. 13839.

Kansas City Court of Appeals. Missouri.

February 7, 1921.

Rehearing Denied May 23, 1921.

Appeal from Jackson County Court; Daniel E. Bird, Judge.

"Not to be officially published."

Action by C. R. Berry against William E. Royster. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Scarritt, Jones, Seddon & North, of Kansas City, for appellant.

C. C. Crow, of Kansas City, for respondent.

TRIMBLE, P. J.

This is an action for money had and received. The trial court peremptorily instructed the jury to return a verdict for plaintiff in the sum of $1,000 with 6 per cent. interest thereon from July 25, 1914. The jury returned a verdict for $1,000 with 6 per cent. interest from January 1, 1915, amounting to $270, or a total of $1,270. The defendant has appealed.

The petition merely alleged that defendant is indebted to plaintiff in the sum of $1,000 for money had and received on the 24th day of July, 1914, which sum the defendant, at the time and later, promised to repay, but, though often requested, failed and refused to do. The answer was a general denial.

In support of his case plaintiff offered in evidence a written contract dated July 24, 1914, between George Lee Chrisman "acting by his agent, William E. Royster," to Berry, the plaintiff herein, whereby Chrisman agreed to sell, and Berry to purchase, a large quantity of land described by proper sectional subdivisions, "with any and all accretions thereto," at $45 per acre, "one thousand dollars ($1,000) of the purchase price to be paid at the execution of these presents and the balance when the title is approved and warranty deed executed and delivered." Clause 8 of the contract provided that—

"The one thousand dollars ($1,000) to be paid when this contract is signed and executed shall be immediately returned to purchaser in the event that the title to the land should fail, or the sale be not consummated."

Plaintiff testified that after the contract was signed he handed defendant a check for $1,000 and admitted that it was the check of one L. C. Hamilton, who, it is apparent from the record, was the real purchaser. The record does not disclose to whom this check was made payable, whether to defendant or to Chrisman.

Defendant denied that he got $1,000 or any other sum from plaintiff at any time, but testified that, as agent of Chrisman, he received Hamilton's certified check for $1,000 and took it to Chrisman; and then offered to show that Chrisman directed him to take the proceeds of the check and pay the expenses of getting the abstract, surveys, etc., which the contract of sale required Chrisman to furnish, and the agent's commission. The court, however, would not allow defendant to show what Chrisman directed, on the ground that Chrisman was dead and the evidence would be hearsay.

Defendant offered in evidence two letters from Berry and one from Hamilton, the former of which show on their face that Hamilton and not Berry was the real purchaser of the land; and the letter from Hamilton states that while his attorney is of the opinion (with the requirements he asked for) "the title would be a fairly merchantable title" and did not believe that a purchaser would be molested, yet the title to accreted land is not as good as if it were patented land, and hence "I have made up my mind to call off the deal." It will be observed that the contract includes "any and all accretions thereto." These letters were also excluded, apparently on the theory that their admission would be an attempt to vary the written contract.

It is urged that the court erred in giving a peremptory instruction to find for plaintiff, for the reason that a part of plaintiff's case rested in parol testimony. It is true, the contract does not recite that the $1,000 was paid, and plaintiff's parol testimony was needed and used to show that the sale was never consummated. But defendant admits that the $1,000 called for in the contract was paid, though not to him but to Chrisman; and from the nature of the questions put to defendant by his counsel and the answers thereto, as well as his attempt to show that the sale fell through on account of Hamilton's fault, it is manifest that there is no question but that the sale was not consummated, and the contract provided that, if it was not, the money was to be returned. We are therefore not willing to say that, regardless of anything else, the court erred in granting a peremptory instruction merely because there was parol testimony in the case.

There may be some question whether error was committed in refusing to admit evidence showing that Hamilton, as the real purchaser, was at fault and to blame for not consummating the deal. To say that such was error is not a holding that Berry cannot maintain the suit for Hamilton, if the facts otherwise entitle a recovery to be had against the agent, defendant Royster. If the controversy herein were between Berry and Chrisman, it might be that clause 8 of the contract providing for the return of the $1,000 "in the event the title should fail or the sale be not consummated" should be held to mean that the money was to be returned even if the sale fell through because of the vendee's fault. It would, however, hardly seem to be a reasonable construction of the contract to say that it provides, in one part of the sentence, that the money shall be repaid if the vendor's title fail (which would be his fault); and that the meaning of the remainder of the sentence is that it should also be repaid even if the trade fell through because of the vendee's fault. But while Chrisman might be held to such a construction of the clause if the suit...