Brown v. Massey

• Decision Date: 02 February 1897
• Citation: 38 S.W. 939,138 Mo. 519
• Parties: BROWN et al. v. MASSEY.
• Court: Missouri Supreme Court

38 S.W. 939

138 Mo. 519

BROWN et al. v. MASSEY.

Supreme Court of Missouri, Division No. 2.

February 2, 1897.

VENDOR AND PURCHASER — CONSTRUCTION OF CONTRACT — POWERS — SPECIFIC PERFORMANCE — EVIDENCE.

1. An agreement for the purchase of lands by B. recited that, "in consideration that said M. hereby guaranties that said land will yield to said B. not less than the sum of $4,000 on or before 18 months from the date of said purchase, * * * B. agrees that M. shall manage, subdivide, and sell said property for such price or prices as they may agree upon, M. to receive one-half of the profits of said sales over and above the $4,000, * * * which sum is to be first returned to B." Held, that M. bound himself, unconditionally, to realize and pay to B. $4,000 at the end of 18 months, at the latest.

2. The agreement did not give M. any interest in the lands, and hence B.'s remedy for M.'s failure to perform was not in equity for sale of the lands, application of the proceeds on the debt, and a decree for the deficiency.

3. Where land was bought for speculation, and a third person, for one-half the profits which he might make by a subdivision and sale of lots, agreed to realize and repay the price within 18 months, or relieve the investor of his bargain, specific performance of the agreement will not be enforced after three years from expiration of said time, where there was no excuse for the delay, and no demand was made for performance promptly after the 18 months, notwithstanding the land could have been sold at a large profit, and in the meantime the property has decreased in value 50 per cent.

4. A letter of which the addressee disclaims all recollection is not admissible in the absence of explanation as to its origin or custody.

Appeal from circuit court, Greene county; James T. Neville, Judge.

Bill by Susan C. Brown, executrix of Alexander Brown, deceased, and others, against Benjamin U. Massey. From a decree in favor of defendant, complainants appeal. Affirmed.

Goode & Cravens, for appellants. Karnes, Holmes & Krauthoff and W. D. Tatlow, for respondent.

GANTT, J.

This is a suit in equity based upon the following written agreement:

"This agreement, made and entered into this 29th day of November, 1888, by and between Sandie Brown, party of the first part, and Benj. U. Massey, party of the second part, witnesseth that said Brown, at the instance and suggestion of the said Massey, has purchased of the McQuigg heirs the following described real estate, in Greene county, Missouri, viz. the northwest quarter of the northwest quarter Sec. 15, township 29, range 22, for the price and sum of four thousand dollars, for the purpose of speculation. And this agreement is that in consideration that said Massey hereby guaranties that said land will yield to said Brown not less than the sum of four thousand dollars on or before the expiration of eighteen months from the date of said purchase, with a sum in addition thereto equal to ten per cent. per annum thereon, he, the said Brown, agrees that said Massey shall manage, subdivide, and sell said property for such price or prices as may be agreed upon by the parties hereto, and upon such terms as they may determine. He, the said Massey, to receive for his services in so buying said land, and in so managing and selling said property, one-half of the profits arising from the proceeds of the sale of said land; that is, one half of the money realized from the sale of said land, over and above the said four thousand dollars, and the ten per cent. per annum interest on same, to be returned to said Brown, and over and above all other items of expense incurred in preparing said land for sale, opening streets through same, advertising same for sale, paying taxes thereon, etc. And in addition to the four thousand dollars, and the interest thereon, so to be returned to the said Brown, he, the said Brown, is to receive the other one half of the net profits arising from the sale of said land. This agreement executed in duplicate. Witness our hands and seals this day and date first above written. [Signed] Sandie Brown. [Seal.] Benj. U. Massey. [Seal.]

"As part of the above contract, said Massey had purchased of John Y. Fulbright a strip of land 97 feet wide and 80 rods long, adjoining the 40 acres above mentioned on the south, and deed to same has been made to said Sandie Brown, for which said Brown has paid the sum of $500 (five hundred dollars). And, further, the said Brown has paid the Springfield and Nichols Street-Railway Company seven hundred and fifty dollars to induce said railway company to build a street railway to said tract of land, which said railway is now built and in operation: Now, this further agreement by and between said Massey and Brown is that said Massey, for the consideration of receiving one-half of the profits of same, as mentioned in the original contract, does hereby guaranty that said Brown shall be paid this said sum of $1,250, in addition to the original $4,000, before any profits arising from said lands shall be paid to said Massey. The intent and meaning of this additional agreement is that Brown shall have 10 per cent. on the $1,250 just as he is to have ten per cent. on the original $4,000, and that this interest and principal shall be paid to him just as the interest and principal of the $4,000 is to be paid to him. Springfield, Mo., September 24, 1889. Sandie Brown. [Seal.] Benj. U. Massey. [Seal.]"

The foregoing stipulations are both written on the same sheet of paper.

Alexander Brown died in April, 1893, having given his estate, by his last will, to his wife and children, and appointed his wife executrix. This suit is prosecuted by his wife and children. The petition alleges the death of Mr. Brown; the execution and probate of his will, and the provisions thereof, and the making of the foregoing contract, setting it out at length. The pleaders then make the following allegations: "Plaintiffs further state that the said Sandie Brown, deceased, in all things performed and kept the said agreement on his part, and that the said land did not yield to said Brown the sums of money which by the above agreement the defendant guarantied and covenanted it should yield to him, the said testator, nor any part thereof; that, on the contrary, neither the said testator nor this executrix, nor any one in his or her behalf, has received any money whatever from the said tracts of land, — that is to say, neither the said testator nor this executrix, nor any one for him or her, has received from the tract of land first aforesaid any part of the purchase price thereof, to wit, the sum of four thousand dollars, nor interest on the said sum, nor did the testator in his lifetime, nor has this executrix since his death, or any one for him or her, received from the tract of land last aforesaid the purchase price thereof, to wit, the sum of five hundred dollars, or any part of it, nor any part of the said seven hundred and fifty dollars paid to the Springfield and Nichols Street-Railway Company as aforesaid, nor any interest on either of said sums. Plaintiffs further state that, in accordance with said contract, the management and control of said tracts of land were placed in the hands of the defendant, in order that he might dispose of the same as contemplated by said agreement, for the advantage of himself and the deceased. Plaintiffs further state that the plaintiff Susan C. Brown, as executrix of the said last will of the deceased, has demanded of ...