Curtis v. Sexton

• Decision Date: 24 January 1910
• Citation: 125 S.W. 806,142 Mo. App. 179
• Parties: CURTIS v. SEXTON.
• Court: Missouri Court of Appeals

125 S.W. 806

142 Mo. App. 179

CURTIS v. SEXTON.

Kansas City Court of Appeals. Missouri.

January 24, 1910.

On Motion for Rehearing, February 21, 1910.

1. VENDOR AND PURCHASER (§ 84) — CONSTRUCTION AND OPERATION OF CONTRACT— OPTIONS.

Where plaintiff had a contract with defendant and another by which they agreed to buy back at a certain time property purchased of them, if plaintiff so elected, it was the duty of plaintiff, if he wished to exercise his option, to tender them a deed at the city of their residence, where the contract was made and was to be performed, and where the property was located, at the time stated in the contract, and demand that they repurchase the property; and it was insufficient to merely write them before the date set for the election that he wished to exercise his option, without tendering any deed, but only offering to sign a deed for the payment of the purchase price.

2. VENDOR AND PURCHASER (§ 84) — CONSTRUCTION AND OPERATION OF CONTRACT— OPTIONS.

Where a party has a right under a contract to demand at a certain time that parties from whom he has purchased land repurchase it, a tender of a deed to them after the date named was insufficient.

3. SPECIFIC PERFORMANCE (§ 94) — GOOD FAITH AND DILIGENCE — SUFFICIENCY OF PERFORMANCE BY PLAINTIFF.

A party desiring to enforce a contract must show that he has done, or offered to do, all on his own part which would cast upon the other party the duty of doing what he is undertaking to force him to do.

4. CONTRACTS (§ 279)—TENDER—EXCUSES FOR FAILURE TO MAKE.

Where a tender is required of a party to a contract, if the party to whom the tender should be made has shown in some effective way that he would not accept it, then, it having thus become a useless act, it need not be performed.

5. VENDOR AND PURCHASER (§ 84) — TENDER OF DEED—EXCUSES FOR FAILURE TO MAKE.

Where defendant and his then partner agreed to repurchase certain land sold plaintiff at a certain named time, if plaintiff desired, letters written by defendant's partner, informing plaintiff that he did not then have the money to repurchase, did not constitute such a repudiation of the contract as would excuse plaintiff from tendering a deed and demanding a repurchase of the property on the day set in the contract, if he wished to receive the benefit of his option.

6. VENDOR AND PURCHASER (§ 84) — CONSTRUCTION AND OPERATION OF CONTRACT— ELECTION.

Election in an option contract must correspond with the offer; and where plaintiff had the right, under a contract with defendant and his then partner, to reconvey land purchased of them for a certain consideration, his notice of election, accompanied by a demand for more than was due him under the contract, was insufficient.

Appeal from Circuit Court, Jackson County; Thos. J. Seehorn, Judge.

Action by W. E. Curtis against Samuel E. Sexton. From a judgment for plaintiff, defendant appeals. Reversed.

See, also, 201 Mo. 217, 100 S. W. 17.

A. F. Evans, for appellant. Robt. F. Porter, for respondent.

ELLISON, J.

Defendant and his partner, one Bracking, executed a written contract to plaintiff, in their partnership name, agreeing to purchase a one-sixteenth interest in certain lands owned by plaintiff in Kansas City, Mo., at a certain date, if plaintiff desired them to do so. Plaintiff claiming a breach of the contract, brought this action for damages against defendant alone. He recovered judgment in the circuit court.

The contract reads as follows: "Kansas City, Mo., Jan. 5th, 1888. In consideration of W. Espy Curtis purchasing from us one-sixteenth interest in Madison Square, an addition to Kansas City, Mo., we guarantee and promise to purchase it back from him October 6th, 1890, if he so desires and requests, at the price he paid us for same, paying him back all the money he paid into and for same with interest at the rate of 10% per annum from date of purchase. * * *" Plaintiff lived in Cincinnati, Ohio. He alleges in his petition that he performed all his part of the contract; that he had paid defendant and Bracking, his partner, for the property an aggregate sum of $2,878.37. He further alleges that prior to the 6th of October, 1890, the date he was to elect whether he would sell the land back to defendant and Bracking, he notified them that he desired to sell, and that he requested them to send to him such form of deed as they desired him to execute; that they refused to furnish such form, and made known to him that they would refuse to purchase back. He further alleges that on the day he was to elect (the 6th of October, 1890), and at different times afterwards, he notified them that he desired them to purchase the land, and they refused to do so. He then alleges that, as defendant and Bracking refused to make out a proper deed and send to him, he, on the 29th of November, 1890, executed a deed to them, and tendered it to each of them, and demanded of each of them the money he had paid for the land, and interest up to the 6th of October, 1890, the day he was to elect; but they each refused the deed, and refused to pay him the money demanded. It was then further alleged that there was a prior mortgage or deed of trust on the land, and that since the foregoing the property had been sold under such incumbrance to third parties.

The trial, from the result of which the present appeal was taken, was the second. At the first trial only the evidence for plaintiff was heard, when the trial court sustained a demurrer thereto and rendered judgment for defendant, and plaintiff appealed to the Supreme Court, where that judgment was reversed and the cause remanded. The present appeal was taken to the Supreme Court, and was transferred to this court by reason of the jurisdiction of this court having been increased to a sum more than that here involved. The case on the first appeal will be found reported in 201 Mo. 217, 100 S. W. 17. Its full history, with much of detail included in its statement, is quite lengthy and much involved. We refer to that report, where will be found much information as to the controversy clearly stated and put into a short space. On that appeal, as already said, only the evidence for plaintiff had been heard, and the Supreme Court, of course, could only treat it from that standpoint. One of the principal points made at the last trial, and on this appeal, was not considered by the Supreme Court, because of essential and important difference in the evidence of the two hearings; that is, the matter of election of plaintiff to sell back and of his tender of a deed.

Coming to the evidence to sustain the allegations of the petition as stated above: We find that plaintiff was in the state of Ohio and defendant in Kansas City, Mo., and that Bracking, at the time of the correspondence to be referred to, was a traveling salesman from Cincinnati, and that the matter of election in pursuance of his option to sell and the matter of tender prior to October 6, 1890, were all made by letters. The letters plaintiff wrote to either Bracking or defendant were not produced; defendant stating he had not received any. But plaintiff had preserved what he calls memoranda copies; some blanks appearing. The first one to defendant is dated the 13th of September, 1890, and reads as follows: "Shall have to let my int. in Mad. Sqr. go as per agreement with you and Frank. Oct. 6, 1890, is the date named in agreement for my decision; but I now give you notice that on that day I shall be ready to receive the cash and turn my interest over to you and Frank, or to whom you may order. You can get figures off your books." In the third one, dated September 29, 1890, he wrote: "Not yet rec'd answer. Shall act on the written agreement between you and Frank and myself concerning Mad. Sq. Oct. 6, '90. All money ______ for it and 10% per an. I shall be ready to transfer title to you and receive the cash on Oct. 6, '90." The fourth one is dated the 30th September, 1890. He wrote, according to his memorandum, as follows: "Giving amount due me 3061.61 and directed him to make deed and attach it to draft (send per exp. or through bank) draft to be delivered to me when I sign the deed." The fifth one is dated the 10th of October, in which he inquired as to "defendant's intentions in the matter." Plaintiff testified that he then, on the 20th of November, 1890, came out to Kansas City and talked with defendant; that defendant told him that "the reason he would not make out a deed and take it back was because he had no funds with which to pay it." Finally a tender of a deed was made by plaintiff, in December, 1890, and this tender is continued with the petition in the cause.

With the foregoing facts established by the record, has plaintiff a case entitling him to a judgment against defendant? In the first place, he had the contract of defendant and Bracking as a partnership, whereby they agreed to buy the property back from him October 6, 1890, if he so requested, at the price he paid them and ten per cent. interest. This was an option to sell to them, to be exercised by him at a certain time, and if not exercised at such appointed time the right ceased, as in such case time was of the essence of the contract. Hollmann v. Conlon, 143 Mo. 369, 45 S. W. 275; Stembridge v. Stembridge, 87 Ky. 91, 7 S. W. 611; Potts v. Whitehead, 20 N. J. Eq. 55; Waterman v. Banks, 144 U. S. 394, 12 Sup. Ct. 646, 36 L. Ed. 479; Guss v. Nelson, 200 U. S. 298, 26 Sup. Ct. 260, 50 L. Ed. 489. Otherwise, one could make uncertain, and use for speculative purposes, a contract manifestly designed to be performed or else annulled at a definite time. If he could delay beyond the time, the obligors could never know when their obligation ceased, and could not keep in proper control of their general business affairs and engagements; and he could purposely delay, to see if a possible rise in values would make an acceptance profitable.

Having the option to sell, if he desired to hold def...