Boulware v. Crohn

• Citation: 99 S.W. 796,122 Mo.App. 571
• Parties: BOULWARE, Respondent, v. CROHN, Appellant
• Decision Date: 05 February 1907
• Court: Court of Appeal of Missouri (US)

99 S.W. 796

122 Mo.App. 571

BOULWARE, Respondent, v. CROHN, Appellant

Court of Appeals of Missouri, St. Louis

February 5, 1907

Appeal from Ralls Circuit Court.--Hon. David H. Eby, Judge.

AFFIRMED.

STATEMENT.--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 eighty 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 thirty 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 thirty 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, Missouri, within thirty 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 incumbrance 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 and E. S. Boulware.

"Approved of above contract. H. CROHN."

Judgment affirmed.

Allison & Allison and Roy & Hays for appellant.

(1) Instructions 1 and 2 given for plaintiff are to be read as one instruction. By them the court peremptorily instructed a verdict for plaintiff, because defendant had not placed the deed in escrow within the thirty days, and directed a verdict for the return of the portion of the purchase money paid by plaintiff, $ 500 and interest. It was the duty of Boulware, if he desired to rescind for such breach, to do so at once by notifying the defendant to that effect. Melton v. Smith, 65 Mo. 315; Mastin v. Grimes, 88 Mo. 478; Kirk v. Seeley, 63 Mo.App. 262; Koerper v. Royal Inv. Co., 102 Mo.App. 543; Hart v. Handlin, 43 Mo. 171; Lapp v. Ryan, 23 Mo.App. 436; Estis v. Reynolds, 75 Mo. 563; Gaty v. Sack, 19 Mo.App. 470; Jones v. Berry, 37 Mo.App. 125. (2) Said instructions were erroneous for the further reason that plaintiff waived his right to rescind the contract for the failure to place said deed in escrow within thirty days. The plaintiff himself testified that he tried to sell the land in November or December to Mrs. Briscoe, and she bargained for it, but backed out. He then tried to sell it to others, and had it in the hands of real estate agents. Lapsley v. Howard, 119 Mo. 489. (3) Said instructions were erroneous for the further reason that the agreement to place the deed in escrow within thirty days was an independent covenant, and its breach did not justify rescission by plaintiff. It was an agreement to be performed at a time prior to the closing of the trade which was to be done March 1, 1904, and it did not go to the whole of the consideration. Butler v. Manny, 52 Mo. 497; Turner v. Mellier, 59 Mo. 526; Strohmeyer v. Zeppenfeld, 28 Mo.App. 268; Burris v. Improvement Co., 55 Mo.App. 381; Sawyer v. Christian, 40 Mo.App. 295.

E. L. Alfred and Ben E. Hulse for respondent.

(1) There was no waiver by plaintiff of the stipulation to place the deed in escrow within thirty days from September 29, 1903. The whole evidence shows the attempted sale of the land to Mrs. Briscoe which is relied upon by appellant to establish waiver, took place in October less than thirty days from the date of the contract. The plaintiff testified that it was in October, 1903. In this he is corroborated by H. E. C. Tucker. To constitute waiver there must be knowledge of the breach. Haysler v. Owen, 61 Mo. 270; Johnson Co. v. Lowe, 72 Mo. 637; Crouch v. Railroad, 22 Mo.App. 315. (2) And there was absolutely no evidence that plaintiff knew of defendant's failure to place the deed in escrow within the time specified. It devolved upon defendant Crohn to show that plaintiff Boulware had knowledge of the breach in question, if he would establish waiver, and since he made no such showing by any evidence whatever, there was nothing to submit to the jury. Dyas v. Hanson, 14 Mo.App. 363; Reithmuller v. Fire Assn. of Philadelphia, 38 Mo.App. 118. (3) Where the parties to a contract expressly stipulate that the time of the performance of the agreements contained therein is an essential element of the contract, the covenants will be held to be dependent. The contract in the case at bar contains the express agreement that time is of the essence of the contract. St. Louis Steam Heating and Ventilating Company v. Bissell, 41 Mo.App. 426.

OPINION

GOODE, J. (after stating the facts).

--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, 1903), 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 thirty 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, Missouri, within thirty 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 wrap apple trees and essential to do so to protect them. The orchard was damaged by rabbits to the amount of several hundred dollars. Crohn neglected to furnish plaintiff with an abstract of title until the latter part of February, 1904, and failed entirely to...