Conley v. Doyle

• Decision Date: 31 July 1872
• Citation: 50 Mo. 234
• Parties: JAMES H. CONLEY et al., Respondents, v. JOSEPH G. DOYLE, Appellant.
• Court: Missouri Supreme Court

50 Mo. 234

JAMES H. CONLEY et al., Respondents,

v.JOSEPH G. DOYLE, Appellant.

Supreme Court of Missouri.

July Term, 1872.

Appeal from Johnson Circuit Court.

Elliott & Blodgett, for respondents.

R. Hicks, for appellant.

BLISS, Judge, delivered the opinion of the court.

The defendant, in 1860, executed to the plaintiff a bond for a deed for 120 acres of land at the price of $1,000, to-wit: $300 down and the balance in one and two years, for which notes were given. The $300 was paid; but the troubles coming on, the plaintiffs entered the United States service and failed to pay the notes. It is in evidence that defendant told them not to trouble themselves about the payments; that when the war was over they would make it all right. The witnesses do not quite agree as to what was said, but it is agreed that the payments were not pressed, and no steps were taken to enforce or rescind the contract. In 1865, without further communication with the plaintiffs, the defendant sold and conveyed the land to one Roberts. On hearing of the sale, one of the plaintiffs called upon the defendant and claimed that they should be reimbursed for the amount paid. As to what passed at this and other interviews, there is conflicting testimony; but all the witnesses seem to agree that the defendant expected to refund something. The title bond had been accidentally burned, and defendant finally gave up the plaintiffs' notes.

The present suit purports to be instituted for a violation of the contract by selling the property while it was in force, and thus putting it out of defendant's power to comply with its terms.

Among the objections to plaintiffs' proceeding is the fact that they not only did not pay the notes as they fell due, but have never tendered their amount, only averring a readiness to pay. If this were an action at law upon the bond under the old practice, it would be necessary to aver specifically and prove a performance by the plaintiffs of every condition precedent. In that case, if the sale to a third person had been in fraud of the vendee, so that the vendor, with intent to cheat, had voluntarily put it out of his power to convey, the damages might be more than the deposit; and it is held in such case that the value of the land at the time of the breach of the conditions of the bond may be recovered. (Sedgw. 186, and notes.) The pleader seems not to be clearly impressed with the nature of his remedy. The contract has been rescinded by the acts of the parties: first,...