Carman v. Harrah
| Decision Date | 05 October 1914 |
| Citation | 170 S.W. 388,182 Mo.App. 365 |
| Parties | W. H. CARMAN, Respondent, v. M. HARRAH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Frank G. Johnson, Judge.
REVERSED.
Judgment reversed.
E. R Morrison and L. Newton Wylder for appellant.
James G. Smith and Newton C. Gillham for respondent.
This is a suit brought November 7, 1912, to recover a cash payment of $ 1556.20 made by plaintiff on a contract, dated June 8 1907, for the purchase of certain land in Texas.
The contract was signed by plaintiff and defendant, but the land was in fact owned by The International Land Company, a corporation, of which the defendant, Miss Mary Harrah, was secretary and treasurer. The company had an office in Kansas City, Missouri. The land was in defendant's name because, under the laws of Texas, a foreign corporation could not own land in that State for speculative purposes.
The theory to which plaintiff clings in his attempt to recover of this defendant the cash payment made on the contract is that defendant was in reality the owner, or that at the time the contract was signed he thought that defendant was the owner of the land and that the International Land Company was acting merely as a selling agent. (An analysis of plaintiff's own evidence, hereinafter made, will disclose whether he thought this or not.)
The petition sets out the contract and the cash payment made thereon and then charges that "although he was at all times after said 8th day of June, 1907, ready and willing to comply with all the terms of said contract, but that defendant could not at said time and cannot now convey a good title to said premises."
The petition further alleged that defendant falsely and fraudulently represented to plaintiff that she was the owner of the land and was able to comply with the terms of the contract; that she did so for the purpose of inducing the plaintiff to part with the $ 1556.20; that plaintiff believed said false and fraudulent representations and paid said money; that plaintiff
It will be observed that the petition seeks to recover the cash payment upon the theory that defendant breached the contract whereby plaintiff was entitled to consider it at an end and demand his money back. The breach and right to recover are stated in two different ways, but possibly do not constitute two different grounds. The first is that although plaintiff was on the date of the contract ready and willing to comply with its terms yet "defendant could not at said time and cannot now convey a good title to said premises." The second is that plaintiff was fraudulently deceived as to defendant's ownership of the land, but has been ready and willing to carry it out on his part and has repeatedly offered to do so and has demanded that defendant keep her part thereof or return him his money.
The answer of defendant was first a general denial; also that plaintiff never paid half of the purchase price according to the contract which required this to be done before he could demand of defendant a warranty deed; also, that defendant had no interest in the contract, that she received no money from plaintiff, that he paid her none, but paid it to the International Land Company well knowing that the said company owned the land and well knowing the capacity in which defendant acted, and that plaintiff elected to pursue his remedy against the Land Company by filing his claim for the money herein sued for with the receiver of the company after it failed in business and plaintiff never made any claim that defendant owed him anything until the institution of this suit. The answer also pleaded the five year Statute of Limitations.
Did plaintiff know that he was really contracting with the International Land Company although the contract was signed by defendant? We think this question is important because, if he did, then the large question in the case, regardless of alleged errors in the trial, is, can plaintiff recover of this defendant. As stated, plaintiff's theory is that he did not know the company was the real party he was dealing with.
Plaintiff was a resident of Indiana. He was induced, either by agents or advertisements of the International Land Company to come to Kansas City and go down to Texas with its president, John U. May, and look at the land there had for sale. While down there he executed the contract sued on. By the terms thereof he agreed to pay $ 4676.10 for the land, of which amount $ 1556.20 was paid in cash, and the remainder, $ 3119.90, was to be evidenced by notes of even date with the contract (which was dated June 8, 1907), whereby he was to pay $ 778.10 on or before June 1, 1909, a like amount on or before June 1, 1910, and the balance, $ 1563.70, on or before June 1, 1911. When one-half of the purchase price had been paid he was to receive a warranty deed with abstract showing good title. This contract was signed by plaintiff and defendant. Before it was signed, however, plaintiff understood perfectly well with whom he was dealing. He was told that the company could not hold the land in its name and that for this reason the title stood in the name of the defendant and the contract was made in her name. Toward the end of the trial plaintiff claimed he thought when he signed the contract that the Land Company was agent for the defendant and that she was in fact the owner of the land. But here is what he testified to at the outset: He then testified he saw advertisements that said John U. May was president of the company and that Miss Harrah was its secretary and treasurer. He then testified that the terms of the contract were talked over. Thereafter the contract was submitted to him for his signature. Other admissions contained in letters by plaintiff hereinafter referred to show that he knew he was dealing with the Land Company.
After the contract was executed, plaintiff returned to Indiana. And on October 21, 1907, the Land Company wrote plaintiff that it had sent his deed and abstract to the land to a bank there where he could pay the remainder of the first half of the purchase price, but that the deed did not express the same terms as the contract with reference to the deferred payments. Plaintiff wrote to the Land Company refusing to agree to the new terms. Under the terms of the contract he had signed, he had until June 1, 1910, in which to finish paying one-half of the purchase price which he was to do before he was entitled to a deed. Plaintiff is in error in thinking that the payment of the first note of $ 778.10 on June 1, 1909, even had it been made would have completed the payment of one-half the purchase price. When he received the above-mentioned letter from the Land Company he made no demand on defendant, or anyone else, that the original contract be carried out, nor did he offer to pay the remainder of the first half of the purchase price then or at any other time.
On November 26, 1907, the attorney for the Land Company wrote plaintiff saying that the company had informed him that plaintiff was not willing to accept the changes made. And, in explaining how the mistake was made in the original terms, this letter told plaintiff "At the time you made this purchase the land had just been bought by the Land Company , and the party selling you the land was not familiar with the terms of purchase, and it is impossible for them to comply with their contract as specified." He then suggests different terms as to the deferred payments and says: To this plaintiff replied (writing again to the Land Company, not to defendant). This letter was not introduced in evidence but evidently he agreed to the proposition the company made to him that the company would resell the land to some one else and repay him his money with interest. We say this because on December 11, 1907, the International Land Company wrote plaintiff a letter saying: To this plaintiff replied on January 20, 1908, (again addressing the International Land Company) saying: ...
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