Curtis v. Sexton

• Decision Date: 22 February 1907
• Citation: 100 S.W. 17,201 Mo. 217
• Parties: CURTIS v. SEXTON.
• Court: Missouri Supreme Court

100 S.W. 17

201 Mo. 217

CURTIS v. SEXTON.

Supreme Court of Missouri, Division No. 1.

February 22, 1907.

1. VENDOR AND PURCHASER — BREACH OF CONTRACT — ACTIONS — DEFENSES.

Plaintiff entered into two contracts with defendant and his then partner. By the first he agreed to purchase certain land to be conveyed to him on making certain payments specified. By the second, defendant and his partner agreed that, at the time of the conveyance to plaintiff, they would pay him a certain sum at his option, for a reconveyance. Plaintiff made the payments as agreed, and on defendant's refusal to convey to him and take a reconveyance from him he sues for breach of contract. Held, that the fact that plaintiff had no title or deed to an interest in the land did not show that he had not performed his part of the contract, since this was due to the fault of defendant and his partner in not conveying to him, as agreed.

2. SAME.

Where plaintiff under a contract with defendant was to have certain land conveyed to him on making his final payment on the contract, and was able and willing to make the last payment, but did not do so on defendant's refusal to convey, he does not forfeit his right to hold defendant for breach of contract.

3. SAME — PERFORMANCE OF CONTRACT — OBJECTIONS TO TITLE — INCUMBRANCES.

Where plaintiff made payments to defendant on a contract for the purchase of an interest in land, and it was agreed that the payments should be applied to remove the incumbrance from plaintiff's interest, which was not done, defendants cannot set up, in defense to an action for breach of their contract to repurchase, the fact that the land was sold to satisfy the incumbrance.

4. SAME — VENDOR'S TITLE — SUFFICIENCY.

Where defendant and his partner agreed with plaintiff to convey land to him on his making certain payments, and at his option to repurchase at a specified advance at the time they conveyed to him, a deed by him, reconveying the same title to the land they were to convey to him, was sufficient.

5. PARTNERSHIP — AS TO THIRD PERSONS — ESTOPPEL BY HOLDING OUT AS PARTNER.

Where plaintiff contracted with defendant and another as a partnership, and had no notice of a dissolution of the partnership, and defendant received payments on the contract, he cannot defend, when sued by plaintiff for breach of the contract, on the ground that the partnership was dissolved.

6. LIMITATIONS OF ACTIONS — LIMITATIONS APPLICABLE TO PARTICULAR ACTIONS — WRITTEN CONTRACTS.

In an action for breach of written contract, where the only necessity for going beyond the writing to make out the case was to show performance by the plaintiff and breach by the defendant, the action was founded on the written contract, within the 10-year statute of limitations.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by W. Espy Curtis against Samuel E. Sexton. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

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

VALLIANT, J.

Plaintiff sues to recover money which he claims to be due him under a written contract between himself and a firm of which the defendant was a member. Plaintiff does not plead the contract by its legal effect, but sets it out in hæc verba, and alleges that defendant has broken it.

From the documents copied into the petition, we gather that the contract which plaintiff attempted to plead is this: January 5, 1888, plaintiff entered into a written contract with one Bracking, whereby he agreed to purchase from Bracking an undivided 1/16 interest in a certain tract of land, called "Madison Square," in Kansas City, for the sum of $2,727.35, to be paid $100 down, $900 when the deed was delivered, and $1,727.35 in five installments on dates specified; the latter to be applied to the payment of 1/16 of an existing incumbrance on the whole tract. There were other details specified in the contract, which, for the purpose of this appeal, are not necessary to mention. It was specified in the contract that it was made subject to a written contract of even date therewith between the plaintiff and the firm of Sexton & Bracking, which firm was composed of the defendant and the Bracking first above named. By that contract, which is also copied into the petition, Sexton & Bracking agreed, in consideration of the plaintiff having made the purchase of the 1/16 interest in the land from them, that they would purchase it back from him October 6, 1890, if he should so desire and request, at the price he paid for the same, together with interest at 10 per cent. per annum from the date of the purchase.

The petition avers that plaintiff performed his part of the contract, made all the payments required, amounting to $2,878.35 plus $131.28 paid for taxes; that these payments were made to Sexton & Bracking; that prior to his contract of purchase of the 1/16 interest there was an incumbrance on the whole tract in the shape of a deed of trust to secure an indebtedness of Saxton & Bracking, and plaintiff assumed to pay 1/16 of that debt, and did pay the money for that purpose to Sexton & Bracking to be by them so applied; that prior to October 6, 1890, plaintiff notified Sexton & Bracking that he desired them to repurchase the interest in the land, and on October 6, 1890, and several times thereafter, he requested them to repurchase the land as they agreed to do, and offered to make them a deed, but they refused to purchase, and refused to pay the plaintiff the money he had paid and interest as per agreement, or any part thereof; that afterwards, on January 6, 1891, the above-mentioned deed of trust was foreclosed, and plaintiff's interest in the land was sold with the rest of it, and passed to a stranger at the trustee's sale.

The prayer of the petition is for judgment for the amount of the payments made, which, with interest thereon as stipulated in the contract, amounted to over $4,500. Defendant filed an answer containing, first, a plea of the five years' statute of limitations; second, a general denial; third, that the purchase of the land by plaintiff from Bracking was a matter entirely between those two with which defendant Sexton had nothing to do, that defendant's attitude was that of guarantor, that the contract of purchase between plaintiff and Bracking on which defendant's contract of guaranty was founded, was another contract between those parties, not the one set out in the petition, and it was never consummated; fourth, that defendant has fully complied with his contract. The reply reiterated that defendant was interested in the land which Bracking agreed to sell to plaintiff, and the transaction was in behalf of the firm of Sexton & Bracking, and plaintiff was induced to make the purchase by the agreement to repurchase.

When the trial began, the defendant objected to any evidence being received on the part of the plaintiff for several reasons, which, taken together, amounted to the assertion that the petition showed on its face that the plaintiff had no cause of action. The objection was overruled, and exception reserved.

The testimony in behalf of plaintiff was to the effect as follows: Defendant Sexton & Bracking were partners in trade dealing in real estate in Kansas City. The plaintiff resided in Cincinnati. He had had other business transactions with this firm, and trusted the management of this transaction to them. The deeds in evidence showed the title to the tract called Madison Square as follows: October 6, 1887, one Rhodes and wife by deed conveyed the land to Ophelia Spofford, Samuel E. Sexton, the defendant, and Frank B Bracking, in the proportion of an undivided half to Spofford, an undivided fourth to Sexton, and undivided fourth to Bracking. On the same day those three executed a deed of trust on the land to secure their three notes for...