Chamberlain v. Ft. Smith Lumber Co.

• Decision Date: 02 July 1915
• Docket Number: No. 11624.,11624.
• Citation: 179 S.W. 740
• Parties: CHAMBERLAIN v. FT. SMITH LUMBER CO.
• Court: Missouri Court of Appeals

179 S.W. 740

CHAMBERLAIN v. FT. SMITH LUMBER CO.

No. 11624.

Kansas City Court of Appeals. Missouri.

July 2, 1915.

Rehearing Denied October 4, 1915.

Appeal from Circuit Court, Jackson County; W. O. Thomas, Judge.

"Not to be officially published."

Action by William Chamberlain against the Ft. Smith Lumber Company, begun in justice court, and appealed to circuit court. From a judgment for plaintiff, defendant appeals. Affirmed.

C. L. Orr, of Kansas City, for appellant. H. L. Hassler, of Kansas City, for respondent.

JOHNSON, J.

Plaintiff brought this suit in a justice court to recover $205 he alleges he deposited with defendant on an option agreement to purchase 80 acres of land in Yell county, Ark. Defendant filed an answer alleging that the money was paid under a contract for the purchase of the land by plaintiff, and that plaintiff failed to make further payments as agreed, and "abandoned and refused to proceed further with the said agreement, although defendant, at the time of plaintiff's abandonment, never refused, but was well able and willing, to perform and carry out its part of the said agreement." At the trial in the circuit court the jury returned a verdict for plaintiff pursuant to a peremptory instruction given by the court, and after unsuccessfully moving for a new trial, defendant appealed.

Defendant, a corporation, was engaged at Kansas City in the business of selling lands in Arkansas upon a plan which required the purchaser of a tract to make a down payment of $3 per acre, and to enter into a written contract with defendant which provided for the payment of the remainder of the purchase price in monthly installments, and bound defendant to execute and deliver a deed to the land on the payment in full of the purchase price. The contract also contained a nonforfeiture clause, and provided certain insurance benefits for the purchaser. Plaintiff, a workingman, called at defendant's office in March, 1911, and entered into an oral agreement for the purchase of a tract of 80 acres at $15 per acre. The terms of sale proposed by defendant required plaintiff to make a down payment of $240, and to enter into a regular form of contract which would provide for monthly payments of $15 each. Plaintiff only had about $100, and defendant accepted it with the understanding, as plaintiff states:

"That I could deposit this money with him [defendant's manager], and as soon as I had paid in $240, he would give me a contract for this land, and then, after I got this contract, I was to pay, I believe, $15 a month. Q. That is, the contract would contain a clause that you would have to pay $15 per month? A. Yes, sir. * * * Q. What was said with reference to how this money [the down payment] should be paid by you? A. Nothing said at all. I was just to pay it until I paid it. There was no stated time."

The testimony of the manager relating to the agreement was not materially different from that of plaintiff, except in one particular. He said:

"When Mr. Chamberlain came in, we went through our literature and discussed the land. Then we went into the financial side of it, and he explained that he could not pay. He was not certain whether he could pay the payments regularly each month, and I stated definitely that, provided he paid the $240, or $3 an acre, within one year from the date of our agreement, it would be all right. * * * Directly he paid the $240 he was to receive a printed contract which contained special benefits under our proposition."

Nothing was said in the conversation on the subject of forfeiture or of what disposition would be made of the payments plaintiff would make in the event he failed to pay $240 within a year. The manager receipted for the payment of $100 as a "part deposit on northeast quarter of northwest quarter and northwest quarter of northeast quarter, section 17, township 4, range 21, Yell county — 80 acres." Under this agreement plaintiff paid $50 April 21, 1911, $40 June 19, 1911, and $15 June 24, 1912. The latter payment was preceded by correspondence in which plaintiff, who had removed to Texas, explained that his failure to pay more was due to lack of employment, and defendant answered that:

"It will be necessary for your payments to be made up to date from the time the sale was entered into and on the terms stated in your agreement with us. If you are unable to do this, would it not be well to take only forty, instead of eighty, acres, as that seems to be a little too much for you from a financial point of view."

On October 1, 1912, defendant wrote plaintiff, who had returned to Kansas City:

"We have had no payment from you on the above land since last June. It is quite impossible for us to hold land for which there is a great demand, and to receive no revenue for doing so. We are not desirous that you should forfeit this tract, but at the same time we cannot reserve it for you unless you bring your payments up to date. We shall hope to hear from you within ten days from date, failing in which we will understand it is not your desire to proceed any further."

Plaintiff did not answer this letter, and defendant sold the tract to another purchaser. Plaintiff wrote defendant under date of February 10, 1913:

"I understand that you placed the land back on the market that I started to make payments on. I am sorry that I failed to keep in a position to hold it, but was not, but I have paid in over $200.00 on this, and I think I have...