Boulware v. Crohn

• Decision Date: 05 February 1907
• Citation: 122 Mo. App. 571,99 S.W. 796
• Parties: BOULWARE v. CROHN.
• Court: Missouri Court of Appeals

99 S.W. 796

122 Mo. App. 571

BOULWARE v. CROHN.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

1. VENDOR AND PURCHASER — REMEDIES OF PURCHASER — RESCISSION OF CONTRACT— GROUNDS—WAIVER.

Where a vendee in a contract for the sale of certain realty endeavored to sell such property after knowing that his vendor had failed to furnish an abstract of title within the time agreed on in the contract, he waived his right to rescind on that ground.

2. APPEAL—INSTRUCTIONS—HARMLESS ERROR.

In an action for breach of contract, where the court, in directing a verdict for plaintiff, did not take a certain breach into consideration, the refusal of an instruction requested by defendant regarding such breach was harmless.

3. VENDOR AND PURCHASER—RESCISSION OF CONTRACT—GROUNDS.

A purchaser in a contract for the sale of real estate was not entitled to rescind the contract for failure of the vendor to deposit a deed in escrow within the time stipulated in the agreement of sale, unless the stipulation to do so was a condition precedent on which the obligation to purchase and pay the remainder of the price depended.

4. SAME—CONTRACT OF SALE—CONSTRUCTION — PERFORMANCE BY VENDOR — DEPENDENT CONDITIONS.

A contract for the sale of realty provided that a deed should be deposited in escrow within a stipulated time, and that the time of performance as stated in the contract was an essential element thereof. The purchaser intended to sell the property within a certain time, and the contract conferred on him the right to take up the deed and perfect his title by the day on which the vendor's time for depositing the deed in escrow expired. Held, that the promise of the purchaser to purchase and pay for the land was dependent on the deposit of the deed in escrow by the vendor within the time fixed by the contract, and, where the vendor failed to make such deposit, the purchaser was entitled to rescind.

5. DAMAGES—LIQUIDATED DAMAGES—PENALTIES.

Where a vendor in a contract for the sale of realty bound himself to keep the premises in repair, insure the buildings against fire, furnish an abstract within 30 days, and put a deed in escrow in the same time, a stipulation for payment of $500 if either party failed to perform his part of the contract was for a simple penalty, and not for liquidated damages.

6. VENDOR AND PURCHASER — STIPULATIONS AS TO PENALTIES — EFFECT ON RIGHT TO RESCIND.

A provision in a contract for a simple penalty for failure to carry out any of the essential terms does not destroy the right to rescind for nonperformance.

7. SAME—SEVERABLE PROMISES.

A provision in a contract for a simple penalty for failure to carry out any of its essential terms did not render the promises contained in the contract severable, and thereby deprive a party of the right to rescind for the breach of the essential provisos.

8. SAME—RESCISSION BY PURCHASER—GROUNDS —DAMAGES SUSTAINED.

Where an agreement by the vendor in a contract of sale to deposit a deed in escrow within a certain time was a condition precedent to payment of the purchase price by the purchaser, the purchaser was entitled to rescind, irrespective of whether he suffered any loss or injury by reason of the vendor's default.

9. SAME—CONTRACT OF SALE—CONDITIONS— WAIVER BY PURCHASER.

Where a condition in a contract for the sale of realty, requiring the vendor to deposit a deed in escrow within a certain time, was not performed, neither the failure of the purchaser to make objection thereto when he received the abstract thereafter, nor his continued efforts to sell the land, nor a statement by him that he would not accept the property because the orchard had been damaged, constituted a waiver of the condition in the contract, where he did not know of the breach until the deed as tendered him on the day on which he was required by the contract to perform.

Appeal from Circuit Court, Ralls County; David H. Eby, Judge.

Action by Edward S. Boulware against Herman Crohn. From a judgment for plaintiff, defendant appeals. Affirmed.

The contract declared on is as follows:

"Articles of agreement, made and entered into this 29th day of September, 1903, between Herman Crohn, of the county of Ralls, and state of Missouri, party of the first part, and E. S. Boulware, of the county of Ralls, and state of Missouri, party of the second part, witnesseth: That said party of the first part has this day sold to said party of the second part the following described real estate in the county of Ralls, state of Missouri, to wit, south half of southeast quarter, section 20, township 54, range 6, containing in all 80 acres, more or less, for the sum of $3,280, on the following terms, to wit: $500 is in hand paid (receipt of which is hereby acknowledged) as part payment on said sale, $2,780 to be paid on March 1, 1904. Possession to be delivered by said party of the first part to said second party on or before March 1, 1904, in as good order and repair as same now are, usual and ordinary wear and tear and unavoidable accident by fire or otherwise or providential destruction only excepted. Said party of the first part to furnish to said party of second part abstract showing good merchantable title to said property within 30 days from date thereof, and should said party of second part desire corrections in said abstract he agrees to deliver a copy of said requirements in writing with party of first part in 30 days after receipt of said abstract, and failure to do so shall be as acceptance of said abstract. Said party of first part shall have reasonable time to make any correction of abstract that shall be necessary. Said party of first part to convey by good and sufficient warranty deed and to pay all taxes and legal assessments on said premises falling due on or before 1st day of March, 1904, said warranty deed to be left in escrow with Perry Bank, at Perry, Mo., within 30 days from date hereof, to be delivered to said party of second part upon payment of balance of purchase price on or before March 1, 1904; said title to be in said first party at the time of payment of said balance of purchase price and said sold premises to be clear of encumbrance except now. Said party of first part to keep house and barn on said premises insured until possession is turned over to said property in the same amount and manner as they are now insured, and in any event of loss or damage sustained under such insurance policy, the insurance money collected to accrue to the benefit of said second party as liquidated damages, and to be retained and applied by said party of first part as part of next accruing payment on said premises. It is further agreed by and between the parties hereto that the time of performance of the above agreements is an essential element of this contract, that the covenants and agreements herein contained shall extend to and be obligatory upon his heirs and executors, administrators, or assigns of the respective parties, and either party hereunto who shall fail or refuse to perform his part of this contract shall pay to the other the sum of five hundred dollars, said sum being hereby agreed upon as the liquidated damages to be sustained by either party upon a failure or default on the part of the other. In witness whereof the said parties have hereunto, and to a duplicate copy, set their hands the day and year above written. Herman Crohn, by His Authorized Agents, Winters & Tucker, E. S. Boulware.

"Approved of above contract. H. Crohn."

Roy & Hays, for appellant.

GOODE, J.

On September 29, 1903, plaintiff and defendant entered into a written contract by which defendant agreed to sell plaintiff a farm in Ralls county. The price was to be $3,280, of which $500 was paid on the day of the execution of the contract, and the remainder, $2,780, was to be paid March 1, 1904. The terms of the contract which need to be noticed were substantially these: The farm was to be turned over to plaintiff on or before March 1, 1904, in as good condition and repair as it was at the date of the contract (September 29, 1905), usual or ordinary wear and tear and unavoidable accident by fire or providential destruction excepted. The defendant agreed to furnish plaintiff an abstract showing a merchantable title within 30 days from the date of the contract, and agreed further to convey the farm by good and sufficient warranty deed, said deed to be left in escrow with the Perry Bank, of Perry, Mo., within 30 days of the execution of the contract, and to be delivered to plaintiff on payment of the balance of the purchase price on or before March 1, 1904. Defendant was also to keep the house and barn insured until possession was relinquished to plaintiff, and, in the event of loss or damage sustained under the insurance policy, the money collected therefrom was to accrue to plaintiff's benefit and to be applied in part payment of the unpaid balance of the purchase price. It was further agreed the time of performance of the foregoing stipulations was an essential element of the contract, and that either party who should fail or refuse to perform his undertakings should pay to the other the sum of $500 as liquidated damages. We have copied the contract, so as to enable a reader to observe the exact phraseology of the instrument. There were about 1,500 fruit trees on the farm, and some time after the contract was executed a conversation occurred between Boulware and Crohn about wrapping these trees to prevent them from being gnawed by rabbits during the winter. The statements of the two men differed regarding the understanding they reached in the conversation. Boulware swore Crohn agreed to wrap the trees so as to protect them; whereas, Crohn swore he only agreed to do so if Boulware would furnish the wrapping material, and that it was not furnished. Crohn swore he knew, during the winter, the rabbits were ruining the trees, and took no steps to check the damage. Expert witnesses swore it was customary to...