Curtis v. Sexton
| Decision Date | 22 February 1907 |
| Parties | CURTIS, Appellant, v. SEXTON |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.
Reversed and remanded.
R. F Porter for appellant.
(1) Plaintiff entered into a binding valid contract with Bracking who was acting for and on behalf of the firm of Sexton & Bracking in signing said contract, the firm of Sexton & Bracking being the real parties in interest, and showed his final acceptance of said contract by making the cash payment provided in said contract when satisfied with title, etc and this was a purchase of the property in compliance with the requirements in that respect of the contract sued on. Meyers v. Schuchmann, 182 Mo. 159; Greffet v Willman, 114 Mo. 106; Gwinnup v. Sibert, 106 Mo.App. 709; Perrin v. Kimberlin, 110 Mo.App. 66; Hayden v. Grillo, 35 Mo.App. 647; Love v. Owens, 31 Mo.App. 501; Christianson v. Wooley, 41 Mo.App. 53; Strude v. Schaff, 36 Mo.App. 15; Lumber Co. v. Clark, 172 Mo. 588; Rice v. Mayo, 107 Mass. 552; Ward v. Cobb, 148 Mass. 518; Roche v. Smith, 176 Mass. 595; Knapp v. Wallace, 41 N.Y. 477; Dayton v. Nell, 43 Minn. 246; Eaton v. Richeri, 83 Cal. 185; Bradish v. Yocum, 130 Ill. 386; Brewer v. Herbert, 30 Md. 301; Loomis v. Davenport, 17 F. 301; Brisco v. Minah, 82 F. 952; Railroad v. Branch, 59 Ala. 152; Lunley v. Robinson, 26 Mo. 364; Harvey v. Morris, 63 Mo. 475; Brown v. Barrett, 75 Mo. 275; Wilson v. Mason, 158 Ill. 304; Springer v. Orr, 82 Ill.App. 558; Burns v. Oliphant, 78 Iowa 456; Potvin v. Curran, 13 Neb. 306; Conkling v. Krakner, 70 Texas 735; Dunn v. Yadish, 10 Okla. 388; Hipple v. Land, 189 Pa. St. 472. (2) The contract of sale, being signed by Bracking for the firm, they being the real parties in interest, inured to their benefit and was sufficient consideration for the contract of the firm. Besides, that contract was under seal and imports a consideration. Randolph v. Wheeler, 182 Mo. 145. (3) Even though it be held that the purchase was not made until a deed was made, the deed made to plaintiff conveying him a one-eighth interest would satisfy this requirement, as the conveyance of a greater interest includes the less, and the reconveyance of the one-sixteenth to their wives subject to incumbrances left the title to the one-sixteenth in him and accomplished practically the same results as far as the title was concerned as if a straight conveyance of one-sixteenth the interest had been made, and the court will look through the shadow to the substance and construe it as a conveyance of a one-sixteenth interest. Besides, Sexton and Bracking were charged with making the conveyance to carry out the contract, and they will not be allowed to take advantage of their own wrong to defeat the contract. Brown v. Barrett, 75 Mo. 275; Viaux v. Old South Church, 133 Mass. 1. (4) The dissolution of the partnership did not affect existing obligations, and notice, tender or demand on one member of the firm would be binding on both, and Bracking's letters in reference to such in connection with this contract are competent evidence against Sexton, the other partner. Abbott, Trial Practice, p. 272; 1 Bates on Partnership, sec. 707; Cady v. Shepherd, 11 Pick. 400; Bank v. Rilly, 52 Mo. 207; Bank v. Atherman, 91 Mo. 191; Coudrey v. Gilham, 60 Mo. 92; White v. Kerney, 2 La. Ann. 639; Hubbard v. Matthews, 54 N.Y. 43; Coster v. Thomason, 19 Ala. 717; Mann v. Locke, 11 N.H. 246. (5) The covenants contained in the contracts were independent and not dependent, and even if it should be held that defendant did not make the last payment called for in his contract in compliance with its terms this would not prevent his recovery, as they had their action to enforce it or could set it up as a counterclaim. Overton v. Curd, 8 Mo. 420; Thompson v. Crutcher, 26 Mo. 319; Turner v. Melber, 59 Mo. 536; Mockwood v. Railroad, 65 Mo. 233; Smith v. Crews, 2 Mo.App. 269; Pfeninghausen v. Sherer, 65 Mo.App. 348; Burris v. Shrewsberry, 55 Mo.App. 381; Seed Co. v. Walt, 94 Mo.App. 76. (6) Time is not the essence of a contract for real estate in the absence of any express provision, as is the case in this contract, and a tender or offer to convey within a reasonable time is sufficient. Bales v. Roberts, 189 Mo. 49; Marshall v. Waas, 8 F. 854. (7) Where it is obvious from the statements of the other party that he will not fulfill his contract, as in this case, there is no necessity for a tender, although a tender was made in this case. Mastin v. Grimes, 88 Mo. 478; Walker v. Cooper, 97 Mo.App. 441.
A. F. Evans for respondent.
(1) The petition does not state a cause of action. It does not allege that plaintiff ever, at any time, had any title to the land. Davis v. Watson, 89 Mo.App. 15; Birge v. Bock, 24 Mo.App. 330. (2) It appears on the face of the petition that plaintiff did not have title to any interest in the land, and that he proposed to convey it as of October 6, 1890, by special warranty deed. The contract between Bracking and plaintiff stipulated: "If, upon examination, it is found that the seller has a good title, in fee, to said property, he is to execute and deliver to the buyer, or his order, a general warranty deed thereto, properly executed." The contract did not pass the title to Curtis and the petition does not allege that the deed was ever delivered to Curtis. Birge v. Bock, 44 Mo.App. 69; Herryford v. Turner, 67 Mo. 296; Davis v. Watson, 89 Mo.App. 15; Carter v. Alexander, 71 Mo. 585. Curtis's failure to pay the encumbrance which he assumed was in legal effect the same as if he had placed the encumbrance on the land, and then offered to convey subject to it, instead of satisfying it. Davis v. Watson, supra. (3) It appeared on the face of the petition that plaintiff's remedy, if any he had, was by suit in equity for specific performance of the contracts, and it clearly appeared on the face of the petition, and from the evidence, that he was not entitled to a decree for specific performance. Tenney v. Turner, 111 Mo.App. 597; Maloney v. Real Estate B. & L. Assn., 57 Mo.App. 384. (4) It appeared on the face of the petition, and was shown conclusively by the evidence, that plaintiff had not performed the contract on his part, and that he committed several breaches of it before his right matured to ask defendant to perform. He assumed and agreed to pay one-sixteenth of the indebtedness secured by the deeds of trust on Madison Square, whereby those debts became his; he, the principal debtor, and his vendor his surety. Bank v. Pettit, 85 Mo.App. 499; Heim v. Vogel, 69 Mo. 529; Fitzgerald v. Barker, 85 Mo. 13; Winn v. Inv. Co., 125 Mo. 528. He failed to pay those debts, and because of such failure, had lost all title to the land. MacLeod v. Snider, 110 Mo. 298; Wellman, Admr., v. Dismukes, 42 Mo. 101; Meyer v. Christopher, 176 Mo. 580; Sick v. Life Ins. Co., 79 Mo.App. 609; Billups v. Daggs, 38 Mo.App. 367; Craycroft v. Walker & Co., 26 Mo.App. 469; Cress v. Blodgett, 64 Mo. 449. (5) Time is always the essence of a unilateral contract. It was conclusively shown by the evidence that Curtis had not performed, or offered to perform, on October 6, 1890, the day fixed by the contract signed by Sexton & Bracking, for its performance, and by reason thereof lost the right to thereafter claim the benefit of it. Glass v. Rowe, 103 Mo. 513; Hollmann v. Conlon, 143 Mo. 369; Cockrell v. Bopp, 106 Mo.App. 555. Under the express provisions of the deed of trust under which Curtis permitted the land to be sold, he had the right to demand and receive a release of his one-sixteenth interest, and to select the lots so to be released, by paying $ 1,000 on account of the encumbrance. If he had complied with his contract, he could have had no diffiuclty in making out a good title October 6, 1890. To permit him to recover in this case would be to allow him to profit by his own wrong. (6) It clearly appeared that the contracts sued on do not constitute a writing for the payment of money or property, within the meaning of section 4272, Revised Statutes 1899; that plaintiff's cause of action, if any he had, accrued October 6, 1890, and was barred by the five-year Statute of Limitations. R. S. 1889, sec. 4273; Finney v. Brant, 19 Mo. 42; Whisler v. Bragg, 31 Mo. 124; Kauz v. Great Council of I. O. of R. M., 13 Mo.App. 341; Garesche v. Chouteau, 37 Mo. 413; Brady v. St. Joseph, 84 Mo.App. 399; Menefee v. Arnold, 51 Mo. 536.
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 haec 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 one-sixteenth 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 one-sixteenth 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...
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