Crouch v. Thompson

• Decision Date: 09 December 1913
• Citation: 162 S.W. 149,254 Mo. 477
• Parties: CROUCH v. THOMPSON.
• Court: Missouri Supreme Court

162 S.W. 149

254 Mo. 477

CROUCH v. THOMPSON.

Supreme Court of Missouri, Division No. 2.

December 9, 1913.

Rehearing Denied January 6, 1914.

1. REFORMATION OF INSTRUMENTS (§ 45)— GROUNDS—MUTUAL MISTAKE.

Where a contract for the purchase of a leasehold recited that it was conditional on plaintiff acquiring simultaneously the fee to the land, and that it was agreed that, unless the title was acquired to both fee and leasehold simultaneously, then the sale was void and the earnest money should be returned, but defendant had no interest in the fee, there was no mutual mistake entitling plaintiff to a reformation of the contract so as to require defendant to convey the leasehold at plaintiff's option, regardless of whether plaintiff obtained the fee or not.

2. REFORMATION OF INSTRUMENTS (§ 45)— MISTAKE—EVIDENCE.

One seeking to reform a written instrument for mistake must show exactly in what the mistake consists and the correction that should be made, by evidence that leaves no reasonable doubt on either point, and it must also appear that the mistake is mutual.

Appeal from St. Louis Circuit Court; James E. Withrow, Judge.

Action by James N. Crouch against Frank C. Thompson, administrator of Judson M. Thompson, deceased. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with directions to dismiss.

Action to reform contract so as to correct a mistake, and to recover damages for breach of the contract as reformed. Plaintiff had a decree of reformation and judgment for damages for breach of the contract assessed at $10,500. Defendant appeals.

The petition alleges that plaintiff and Judson M. Thompson, defendant's intestate, entered into a contract in writing as follows:

                            "St. Louis, Mo., July 3d, 1907
                

"Received of J. N. Crouch the sum of five hundred ($500.00) dollars, being earnest money and part purchase price for the following described property to wit: An unexpired leasehold on lot of ground situated in the city of St. Louis, state of Missouri, being the leasehold, together with the building and all improvements thereon, made by the Mission Free School to the undersigned for a term of ninety-nine (99) years, from April 1st, 1880. Said property fronting 59' 4" (fifty-nine feet four inches) on the west line of Eighth street, by a depth of 127' 6" (one hundred and twenty-seven feet six inches) westwardly to an alley, in city block 194, and known as Nos. 411-13 and 415 North Eighth street, bounded on the east by Eighth street, north by property now or formerly of Patrick Yore estate, west by an alley, and south by property known as Victoria Building. Said leasehold to be conveyed for the sum of $140,000.00 net cash, to said J. N. Crouch, his representatives, successors or assigns. Terms of sale to be cash, less said earnest money paid this day. Rents to go to seller until the day of closing sale. Taxes for 1907, one-half to be paid by seller and one-half for 1907, and all taxes thereafter to be paid by purchaser. To be conveyed by perfect title, free and clear of all incumbrances, except taxes as above specified, by a special warranty deed and by proper assignment of lease. Sale to be closed on or before August 1st, 1907. This sale is made conditioned upon the said J. N. Crouch, his successors, representatives or assigns, acquiring simultaneously, with this leasehold, also the fee to the land thereunder, and by a perfect title thereto, and it is understood and agreed that unless the title is acquired to both fee and leasehold simultaneously then this sale is void, and the earnest money this day paid shall be returned to said J. N. Crouch.

"Executed in duplicate on the day and year first above written.

                  "[Signed]     J. M. Thompson
                "By J. E. Kaime & Bro. R. E. Co., Agents
                               "J. N. Crouch
                  "Approved: J. M. Thompson."
                

It also alleged the following: "That at the time said contract was reduced to writing, as hereinabove set out, it was agreed by and between plaintiff and said Judson M. Thompson, that plaintiff should not be required to complete the sale unless plaintiff should be able to secure before August 1st, 1907, the fee to the property, the leasehold of which he was purchasing, as hereinabove set out, and that if the plaintiff was thus unable to secure said fee, that plaintiff should have returned to him the earnest money of five hundred dollars, paid under the contract, and should be entitled, if he so desired to proceed no further with the contract, and that it was at the time determined and agreed by and between plaintiff and said Judson M. Thompson, that said agreement was for the sole and exclusive benefit of plaintiff, and could be by plaintiff waived or not, as he elected, and that the written contract to be executed by plaintiff and said Judson M. Thompson should, in its terms, carry out this agreement. That subsequently the written contract, as hereinabove set out, was drawn up and signed by plaintiff and by said Judson M. Thompson, through his agents, the J. E. Kaime & Bro. R. E. Co., and that the said contract was approved and signed by said Judson M. Thompson, but that by mistake the said written contract did not correctly recite the provision in regard to the acquisition of the fee by plaintiff. That at the time of the signing of said contract it was expressly agreed by said Judson M. Thompson that he was not interested in said fee, and that the clause in said contract in relation thereto was a matter solely for the interest of plaintiff, to be waived or not by him at his pleasure. Plaintiff further states that the provision in said contract concerning the acquisition of the fee by him was waived by him and that said Judson M. Thompson was released before August 1st, 1907, from the provision concerning the acquisition of the fee by plaintiff, and that plaintiff demanded of said Judson M. Thompson, the leasehold which said Judson M. Thompson had agreed to sell, as hereinabove set out. That plaintiff has not acquired the said fee and is not now and was not the owner thereof on August 1st, 1907, or at any other time, but that with a view to prevent plaintiff from acquiring the leasehold which by said contract he was entitled to acquire, said Judson M. Thompson, subsequent to the date of said written contract, and in violation of the agreement entered into between him and plaintiff, and in fraud of plaintiff, entered into negotiations with one Simon Van Raalte for the purpose of selling to said Simon Van Raalte before August 1st, 1907, the leasehold which plaintiff was by said contract entitled to acquire, and conspired with said Simon Van Raalte and others to purchase the said fee to the property hereinabove described for the purpose of preventing plaintiff from acquiring the said leasehold interest therein, and that said Judson M. Thompson sold to said Simon Van Raalte the leasehold which by his said contract he had agreed to sell to plaintiff, and sold the same to said Simon Van Raalte long before August 1st, 1907, and that on August 1st, 1907, said Judson M. Thompson had parted with the leasehold interest which he had contracted to sell to plaintiff, as in the contract hereinabove set out, and had placed himself in a position where it was impossible for him, the said Judson M. Thompson, to comply with his contract of July 3rd, 1907."

The petition then alleges that Judson M. Thompson retained said sum of $500, refusing to repay it and to deliver the leasehold to the plaintiff, alleging plaintiff's damages at $20,500. The answer was a general denial.

The J. E. Kaime & Bro. Real Estate Company was the agent for Thompson in making the sale. Mr. David F. Kaime of that company testified: "Q. The last contract, dated July 3d, between Mr. Thompson, by J. E. Kaime & Bro. Real Estate Co....