Carson v. Woods

• Decision Date: 01 June 1915
• Docket Number: No. 17287.,17287.
• Citation: 177 S.W. 623
• Parties: CARSON et al. v. WOODS et al.
• Court: Missouri Supreme Court

177 S.W. 623

CARSON et al. v. WOODS et al.

No. 17287.

Supreme Court of Missouri, Division No. 1.

June 1, 1915.

Appeal from Circuit Court, Howard County; Alex. H. Waller, Judge.

Action by George H. Carson and another against Rowena W. Woods and others. There was a judgment for defendants, which was set aside, and, from an order granting a new trial, defendants appeal. Reversed and judgment directed.

R. M. Bagby and Sam C. Major, both of Fayette, and W. M. Williams, of Booneville, for appellants. A. W. Walker and W. C. Arline, both of Fayette, and Ed. E. Yates, of Kansas City, for respondents.

GRAVES, J.

Action for specific performance of a contract for sale of real estate. Plaintiffs are father and son. It is charged that whilst George H. Carson, the father, made the contract for purchase with the defendant Rowena Woods, such contract was made for the benefit of the son, William Carson, and hence the two join as plaintiffs. The petition counts upon the following written memoranda of the contract:

"$500.00 Fayette, Missouri, Oct. 2, 1911. "Received of George H. Carson five hundred dollars, part payment of purchase price of $11,-500.00 on my farm of 160 acres, mole or less, being the northwest quarter of N. M. survey 2466, and about 3½ miles southwest of Fayette in Howard county, Missouri, balance to be paid upon delivery of deed conveying good title, which I agree to make within a reasonable time.

                  "[Signed.]          Rowena W. Woods
                  "Witness: G. H. Carson."
                

The petition then avers a tender of the balance of the purchase money and a demand for the deed called for in the contract, and further avers defendant's refusal to make and deliver the same. The petition thus accounts for the presence of G. S. and Harley M. Davis as defendants:

"Plaintiffs further state that they are informed and believe that the defendants G. S. Davis and Harley M. Davis claim to have acquired some interest in said land by virtue of a contract executed to them by the defendant Rowena W. Woods subsequent to the execution of said memorandum contract made with the plaintiff as aforesaid and after having notice and knowledge of the sale of said land to plaintiff under said memorandum contract, and said G. S. Davis and Harley M. Davis are made parties defendant herein for said reason, and plaintiffs say that whatever equities the defendants G. S. Davis and Harley M. Davis may have in said land are subject to the rights cud equities of the plaintiff herein."

The petition concludes:

"Plaintiffs state that plaintiff George H. Carson is still ready and willing to perform the conditions required of him by said memorandum contract of purchase and now renews said offer here in court. Wherefore plaintiffs say the plaintiff George H. Carson has no adequate remedy at law and pray for a decree requiring the defendants G. S. Davis and Harley M. Davis to release any interest they may claim in said land, and requiring the defendant Rowena W. Woods to execute to the plaintiff George H. Carson a deed conveying a good title to the above-described land, according to the terms and conditions of said memorandum contract of purchase, and to order said deed delivered to the plaintiff George H. Carson, upon the payment of said purchase price being made by said plaintiff, as required of him by said memorandum contract of purchase, and that the court decree plaintiff all proper relief in the premises."

The answer of Mrs. Woods presents all of the question. That answer reads:

"Now comes defendant Rowena W. Woods, by her attorneys, and for her separate answer to plaintiffs' petition admits: That on and prior to the 2d day of October, 1911, she was the owner in fee, and possessed of, a farm of 160 acres, more or less, being the northwest quarter of New Madrid survey No. 2466, and about 3½ miles southwest of Fayette, in Howard county, Mo. This defendant denies each and every other allegation in said petition contained.

"This defendant, for further answer and defense, states: That on or about the 2d day of October, 1911, she entered into a contract with her codefendants, G. S. Davis and Harley M. Davis, whereby she undertook and agreed to convey said real estate to them for the price and sum of $11,200, and that her said codefendants contracted and agreed to purchase said land from her, and to pay the above amount for the same. That plaintiffs, and each of them, had actual knowledge of this contract and were fully informed of the making thereof. That the plaintiffs are of kin to this defendant, and, by reason of the family connections, occupied confidential relations with her. That, after this defendant had made said contract to sell said laud to her codefendants, and after the plaintiffs had notice thereof, the said plaintiffs, on the 2d day of October, 1911, came to this defendant's home in the city of Fayette, when her husband, Theodore F. Woods, was then dangerously ill and upon his deathbed. That this defendant was, at the time of their visits, sick, nervous, and distressed, and in such mental and physical condition that she was unable to transact business, all of which was known to the plaintiffs. That she had employed R. M. & David Bagby, of the city of Fayette, to take charge of and look after her business interests, including the sale of the aforesaid lands, and had placed the same under their exclusive management and control. That, when plaintiff came to her house, as aforesaid, they asked her to sign some paper concerning said lands. That they were then and there informed that the Bagby Bros. were her agents and were transacting her business, and that she was unwilling to enter into any contracts without their knowledge and advice. That she was then and there wrongfully urged and importuned by plaintiffs to sign a paper presented to her by them, which she is informed and believes, and therefore states the fact to be, is a paper referred to in the petition as a memorandum in writing of a contract of sale for said lands to the plaintiff, and is copied therein. That she, at first, declined to sign the same, but at the solicitation of the plaintiffs, and upon their representation that it was entirely proper for her to do so, and without reading the same, she signed her name to the paper presented; but that her signature was obtained thereto with the express agreement and understanding between her and plaintiffs that said paper was to be presented by the plaintiffs to the said Bagby Bros. for their approval and sanction before it should become operative or be effective; and that this defendant notified the plaintiffs that she would not sign any paper concerning said lands of her business matters upon any other condition. That, relying upon the good faith of the plaintiffs, and being induced by the family ties and confidential relations existing between the plaintiffs and this defendant, she signet the paper presented to her without reading the same or giving any heed to its contents, and under the belief and with the understanding that said writing would be presented to and approved by her said agents, the Bagby Bros., and that it was only signed for the purpose of having it so presented to and approved by them and with that understanding. That said paper was never presented to, or approved by, said Bagby Bros., but, upon the contrary, long prior thereto, said land had been sold to her codefendants with the knowledge and approval of said Bagby Bros. That any writing executed by her was obtained wrongfully and by reason of the undue influence of the plaintiffs acquired over defendant on account of her kinship to, and confidential relations with, her, and by virtue of the express understanding between them and this defendant that such paper was to be submitted to the said Bagby Bros. for their approval, and, if not approved, that the same should be returned to her. That this defendant has, by deed of warranty duly executed and acknowledged by her, sold and conveyed said real estate to her codefendants G. S. Davis and Harley M. Davis, and that they are now the owners thereof.

"Wherefore this defendant says that the plaintiffs are not entitled to specific performance against her or to any other relief, and, having fully answered, asks to be hence dismissed with her costs."

G. S. and H. M. Davis answer that they were the owners of the land by deed from Mrs. Woods, that prior to the contract set out in plaintiff's petition they had a contract for such land with Mrs. Woods, and that plaintiffs had full notice and knowledge of this contract when they made the contract pleaded by them. Replies were general denials.

Judgment was given nisi for the defendants, but afterward on motion of plaintiffs this judgment was set aside, and from this order sustaining the motion for new trial defendants have appealed. The evidence can best be detailed in the course of the opinion in connection with the points made.

I. At the outset we are met with the earnest contention that the written memoranda of the contract sued upon in this case has been materially changed, and for that reason is void and will not support this action. Under the facts the question is a novel one. The defendants thus concisely state their contentions:

"The writing by plaintiff of his name upon the contract sued on, as an attesting witness, after its delivery and in the absence and without the knowledge or consent of Mrs. Woods, is a material and nullifying alteration and will defeat any action founded upon said writing."

The written instrument we have not set out in full in our statement. In addition thereto is an acknowledgment before a notary public. In that acknowledgment it is certified by the notary that G. H. Carson, whose name appears upon the receipt as a witness, acknowledged before such notary that he was present and saw Rowena W. Woods sign the instrument in writing, and heard her acknowledge the same to be her free act and deed, for the purposes therein mentioned; and that ...