Davis v. Barada-Ghio Real Estate Co.

Decision Date06 February 1912
Citation143 S.W. 1108
PartiesDAVIS v. BARADA-GHIO REAL ESTATE CO.
CourtMissouri Court of Appeals

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Walter N. Davis against the Barada-Ghio Real Estate Company. From a judgment for plaintiff, defendant appealed to the St. Louis Court of Appeals, from which the cause was transferred to the Springfield Court of Appeals, under Laws of Missouri 1909, p. 396 (Rev. St. 1909, § 3939). In that court a judgment of reversal was entered (145 Mo. App. 24, 129 S. W. 751), and the cause retransferred to the St. Louis Court of Appeals upon the determination by the Supreme Court of the unconstitutionality of the act of transfer. Affirmed.

Collins & Chappell, for appellant. Glendy B. Arnold and John M. Dickson, for respondent.

CAULFIELD, J.

The appeal in this case was prosecuted to this court, but was thereafter transferred by it to the Springfield Court of Appeals under the provisions of an act of the Legislature, approved June 12, 1909. See Laws of Missouri 1909, p. 396. See, also, section 3939, R. S. 1909. In due time the cause was disposed of by the Springfield Court of Appeals through an opinion prepared by Judge Cox of that court, as will appear by reference to Davis v. Barada-Ghio Real Estate Co., 145 Mo. App. 24, 129 S. W. 751. Subsequently, the Supreme Court declared the said legislative act, which purported to authorize the transfer of cases from this court to the Springfield Court, to be unconstitutional. The cause was thereafter transferred by the Springfield Court of Appeals to this court on the theory that the jurisdiction of the appeal continued to reside here and the proceedings had in the Springfield Court with reference thereto were coram non judice. The case has been argued and submitted here, and, upon due consideration, we find ourselves unable to concur in the view expressed by the Springfield Court in the opinion above referred to.

The suit is one to recover damages for breach of contract brought in the circuit court of the city of St. Louis. A trial being had there before a jury, the plaintiff had verdict and judgment for $3,231.25, and the defendant has appealed. The contract alleged to have been breached was made and entered into in writing on May 16, 1901, between the defendant and one Stephenson. By its terms, the defendant acknowledged the receipt of $1,500 paid to it by Stephenson, and in consideration thereof agreed that for the further sum of $23,500 to be paid, $1,500 in 30 days and $22,000 in 60 days, it, the defendant, would sell and convey certain lands to Stephenson, title to be free and clear and conveyance to be made by good and sufficient warranty deed. The contract was assigned by Stephenson to John C. Hall, July 1, 1901, and by Hall to plaintiff on July 16, 1901. The defendant in its answer admits the making of the contract and that Stephenson made the first and second payments of $1,500 each in accordance therewith, but the contract was not further and completely performed by the payment of the balance of the purchase price, $22,000, and the delivery of a deed conveying title free and clear. As to this, plaintiff avers that within 60 days from the date of said contract, to wit, on July 14, 1901, he and his said assignors were ready, able, and willing to perform and offered to accept a conveyance of the property and to pay the $22,000, but the defendant refused to convey, and has never so conveyed, the same, and could not then, nor at the time of bringing this suit, convey a good title to the property, because it had no title thereto, and because the property was, on the date the defendant contracted to convey the same, subject to two deeds of trust in the nature of mortgages, and continued to be until January 25, 1902, when the property was sold at a sale in foreclosure under one of said deeds of trust and purchased by one Arthur Kocian, who immediately incumbered the same with another deed of trust made by him which incumbrance continued up to the time this suit was brought.

The defendant in its answer admits that on July 14, 1901, there was of record the two deeds of trust described in plaintiff's petition, but alleges that, at the date of making the contract and at all times thereafter, the plaintiff and his assignors had knowledge of the existence of both of them and made no objection thereto. That on or about July 15, 1901, it, the defendant, was the owner and holder of one of said deeds of trust and had the funds provided with which to pay off and satisfy the other; that on or about said day "this defendant called upon John C. Hall, who then claimed to be the owner of said contract of sale or representing said L. B. Stephenson, and presented to him a duly executed deed conveying the real estate described in said contract and offered to deliver said deed to said Hall and to have both of said deeds of trust satisfied and released of record if said Hall or said Stephenson would express a willingness to pay to this defendant thereupon the sum of twenty-two thousand ($22,000) dollars, the remaining sum to be paid under said contract, but that said Hall thereupon informed the defendant that neither he nor said Stephenson had or could procure said sum of twenty-two thousand ($22,000) dollars, and that they were unable to carry out the said contract upon their part." The answer also contained a general denial. The reply was a general denial.

This same case was here before on appeal by the plaintiff from an order granting a new trial. See Davis v. Barada-Ghio Real Estate Co., 115 Mo. App. 327, 92 S. W. 113. The facts now presented by the record before us are substantially the same as were set forth by Judge Goode in the statement of facts forming part of the opinion of this court on that appeal, and for brevity that opinion is referred to for a fuller understanding of such facts. It was there held by this court that Stephenson's agreement to pay and the defendant's agreement to convey a clear title were concurrent and dependent conditions, and performance, or an offer to perform, by either party was essential to put the other party in default and lay the foundation for an action by the...

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7 cases
  • Polk v. Missouri-Kansas-Texas Railroad Co.
    • United States
    • Missouri Supreme Court
    • August 27, 1943
    ...Ry. Co., 93 S.W. (2d) 1111; School Dist. v. Phoenix Land Co., 249 S.W. 51, 297 Mo. 332; Hunt v. Hunt, 270 S.W. 365; Davis v. Real Estate Co., 143 S.W. 1108, 163 Mo. App. 328; Seewald v. Gentry, 286 S.W. 445, 220 Mo. App. 367; Hamilton v. Crow, 75 S.W. 389, 175 Mo. 634; Christine v. Luyties,......
  • Ridenour v. Wilcox Mines Co.
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    • Missouri Court of Appeals
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    ...139 S. W. 172, 176. An assignment of error, not in-sisted on in appellant's argument and brief, will be deemed waived. Davis v. BaradaGhio Real Estate Co., 143 S. W. 1108; Lange v. Railway, 115 Mo. App. 582, 91 S. W. 989; Corrigan v. Kansas City, 93 Mo. App. 173; Powell v. Palmer, 45 Mo. Ap......
  • Leader Realty Company v. Markham
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    • Missouri Court of Appeals
    • February 6, 1912
  • Hellrung v. Hoechst
    • United States
    • Missouri Supreme Court
    • November 9, 1964
    ...distinguishes the Davis-Barada cases (Davis v. Barada-Ghio Real Estate Co., 115 Mo.App. 327, 92 S.W. 113; Davis v. Barada-Ghio Real Estate Co., 163 Mo.App. 328, 143 S.W. 1108) because in those cases 'The money was demanded and a deed was As to the recovery of the $5,000 earnest money, the c......
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