Cable v. Jones

• Decision Date: 10 February 1904
• Citation: 78 S.W. 780,179 Mo. 606
• Parties: CABLE v. JONES.
• Court: Missouri Supreme Court

78 S.W. 780

179 Mo. 606

CABLE v. JONES.

Supreme Court of Missouri, Division No. 1.

February 10, 1904.

SPECIFIC PERFORMANCE — ALTERATION OF CONTRACT—EFFECT—EVIDENCE —SUFFICIENCY.

1. A person who has signed a contract to convey land cannot escape liability thereon by a subsequent alteration thereof made by his agent, without consulting him, and with the intent to defraud the purchaser.

2. Where, in a suit to enforce a contract whereby defendant agreed to convey land to plaintiff, it appeared that the contract was certain and capable of performance, and was signed by defendant, and that subsequently defendant's agent, without consultation with him, altered the terms thereof, that the purchaser declined to accept the contract as altered, but insisted on defendant performing the contract as originally signed, and that the purchaser tendered the purchase money and demanded a deed, the chancellor was warranted in decreeing specific performance.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Suit by Amanda Cable against Samuel R. Jones. From a decree for plaintiff, defendant appeals. Affirmed.

Henry Smith, for appellant. O. A. Lucas, for respondent.

MARSHALL, J.

This is a proceeding in equity to compel the defendant to specifically perform his contract to sell to the plaintiff lot 1 of McLain's Woodland Park, on the southeast corner of Twenty-Ninth street and Woodland avenue, in Kansas City, having a front of 51 feet, by a depth of 130 feet. The answer is a verified plea of non est factum, and a general denial. The plaintiff secured a decree in the circuit court, and the defendant appealed. No errors of law are assigned; the defendant's whole contention is that the trial court erred in its finding of fact.

Briefly stated, the controversy is this: The defendant owned the land in question, and had placed it in the hands of J. A. McLaughlin for sale at the price of $500. McLaughlin advertised it for sale at $600. The plaintiff wanted to by it, and her husband, acting for her, entered into negotiations with McLaughlin to buy it, and offered him $400 for it. McLaughlin reported the offer to the defendant, and he told McLaughlin he would take $425 for it, and that he (McLaughlin) might have all he could get over that amount. McLaughlin then told plaintiff's husband he could have it for $450, and he said to get up the contract. When McLaughlin brought the contract to Mr. Cable, he said he was not satisfied whether or not the contract covered the special taxes. Mr. Cable says that, when McLaughlin told him he had the property for sale, the first question he asked him was whether the price covered the paving and sewer taxes, and McLaughlin said they were all paid, but, if not, they would be paid. McLaughlin denies that anything of the kind took place. At any rate, Mr. Cable and Mr. McLaughlin went to the office of Mr. Lucas, Mr. Cable's attorney, and he objected to the contract that Mr. McLaughlin had drawn up, and the latter went and got a printed form of a contract, and Mr. Lucas changed it and drew up a contract, which contained this provision: "The seller also agrees to pay all state, county and municipal taxes, general and special, and all assessments now a lien on said property, excepting taxes for the year 1901 and thereafter, and all assessments for public parks not now due and payable, which are to be assumed and paid by the buyer." The contract so drawn was given to McLaughlin to be signed by Jones, the defendant. McLaughlin took the contract to Jones, and he signed it just as it was written, he says, without reading it. After he signed it McLaughlin took the contract so signed by Jones to Cable, and he said he still was not satisfied about the special taxes, that they might be a lien although not issued, and asked him to let the matter rest until the next evening, which McLaughlin agreed to. Cable consulted his attorney about it, and he advised that the taxes were a lien, and that the contract was all right, and that Jones would have to pay them. Cable saw McLaughlin and told him the contract was all right, and to bring it out to his house, and his wife would sign it and pay the $50 required by the contract to be paid at once. At that time the contract was just as Mr. Lucas had written it, and contained the provision that the seller should pay the special taxes, and was signed by Jones. McLaughlin, however, did not come that night. The next day Cable saw McLaughlin, and asked him why he had not come. He answered: "Well, after you consulted a lawyer and you found out that the taxes are to be paid, Mr. Jones don't want to pay them, and he won't stand with the contract." Cable replied: "Mr. McLaughlin, he has already signed the contract, and we have never talked about anything else but that he should pay the taxes. That is our contract, and I insist on it. I have been to the expense of employing a lawyer, and I insist on the contract." McLaughlin replied, "If that is the case I will bring it out to the house to-night." McLaughlin says that after Mr. Lucas drew up the contract he took it to Jones and he signed it, and after he had the talk with Cable about the taxes he spoke to Mr. Thornhill about it, and asked him if Jones would be liable for the taxes under the contract, and Mr. Thornhill said he would be. Then McLaughlin asked Thornhill what he should put in the contract to make it so Jones would not have to pay the taxes, and Thornhill told him to write the words "which are now due and payable" after the word "property" in the clause of the contract above quoted, and McLaughlin then wrote these words in the contract. The clause would then read: "The seller also agrees to pay all state, county and municipal taxes, general and special, and all assessments now a lien on said property which are now due and payable," etc. The special taxes were at that time a lien, but under the charter of the city were payable in four annual installments, and were therefore not then "due and payable." So that the contract as drawn by Mr. Lucas required Jones to pay the special taxes because they were then a lien, whereas the change made by McLaughlin after Jones signed the contract did not require Jones to...