Davis v. Barada-Ghio Real Estate Company

• Decision Date: 12 December 1905
• Citation: 92 S.W. 113,115 Mo.App. 327
• Parties: DAVIS, Appellant, v. BARADA-GHIO REAL ESTATE COMPANY, Respondent
• Court: Missouri Court of Appeals

92 S.W. 113

115 Mo.App. 327

DAVIS, Appellant, v. BARADA-GHIO REAL ESTATE COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

December 12, 1905

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. Moses N. Sale Judge.

AFFIRMED AND REMANDED.

STATEMENT.--A written contract was executed May 16, 1901, by the Barada-Ghio Real Estate Company, party of the first part, and Lloyd B. Stephenson, party of the second part, for a sale by the first party to the second of a tract of land, part of which lay inside and part outside the corporate limits of the city of St. Louis. The tract was known as North's Forest Park Summit. The contract provided for a cash payment of $ 1,500 on the execution of the instrument, another payment of $ 1,500 in thirty days from that date and the remainder of the purchase money ($ 22,000), in sixty days from the same date. The Barada-Ghio Real Estate Company bound itself to convey by "a good and sufficient warranty deed, free and clear, "all the property except certain lots already sold, on full payment of the purchase money at the time stated. The contract concluded with this paragraph: "If at the end of thirty days this option is not accepted by said L. B. Stephenson, his legal representatives, or assigns, then the sum, to-wit; $ 1,500, this day paid, shall be forfeited to said Barada-Ghio Real Estate Company." Stephenson made the first payment on the date the contract was executed and the second on the 14th of the following June and within thirty days. He then went to Virginia on a trip and left the transaction in the hands of his agent, John C. Hall; but testified that he had arranged with the Missouri Trust Company, where he had $ 50,000 worth of bonds deposited, to advance the money needed to complete the payment of the price, the trust company to hold his bonds as collateral security for the loan. The testimony shows the bonds were ample security and that the trust company had the money on hand to lend. Stephenson was uncertain whether he made the arrangement with the trust company before he went to Virginia or afterwards; but was positive that he made it either personally, before leaving St. Louis, or by letter after he left. Mr. Hall and A. L Schultz were interested in the sale with Mr. Stephenson. The deal never was consummated and on September 19, 1902, after the land had been sold under a deed of trust executed in 1892, this action was instituted by Walter N. Davis, as assignee of Stephenson's rights under the contract, to recover damages from the defendant for failing and refusing to perform its agreement. Besides alleging the matters we have stated, the petition avers that on July 14, 1901, plaintiff and his assignors were ready and willing to perform the agreement on their part, in all respects remaining unperformed, and on said date offered to accept a conveyance of said property and then and there tendered to the defendant the remainder of the consideration agreed to be paid, but the defendant refused to carry out the contract, and refused to convey the property to the plaintiff or his assignors; that defendant could not at that time, nor at the time the suit was instituted, convey a good title to the ground for the reason that it was incumbered by certain deeds of trust, which are designated, and was afterwards, on January 25, 1902, sold to foreclose one of the deeds of trust, purchased at said sale by Arthur Kocian and immediately incumbered by him for about $ 9,000. The petition further charges that at the date of the breach of the contract by the defendant, the land was of the value of $ 60,000, and plaintiff was damaged in the sum of $ 38,000 by the breach. The contract of sale was assigned by the vendee Stephenson to John C. Hall, July 1, 1901, and by Hall to plaintiff Davis on July 16, 1901.

The evidence shows that at the time the contract was made the property was incumbered by two deeds of trust executed by John M. North and wife; one to Charles Coffall's trustee, dated January 11, 1892, to secure a note for $ 8,000 and certain interest notes; the other to George Hruska's trustee, dated October 17, 1898, to secure a note for $ 6,700 and certain interest notes. The evidence before us shows that the property was sold under the first of those deeds of trust January 25, 1902; but does not show whether the purchaser was, as plaintiff alleged, Arthur Kocian, or some one else. At present it is not material who bought the land; but there might be a contingency in which it would be material that defendant did not lose control of the land by the sale, so that it could not convey as agreed. At the date of the contract of sale to Stephenson there was another apparent incumbrance on the property, consisting of a mortgage or deed of trust executed in 1857. This instrument appears to have produced some dispute between the parties about the state of the title; but it is not referred to in the petition and, hence, is unimportant in disposing of the appeal. As we gather, either it had been paid or was barred by the statute of limitations.

The evidence conflicts on the issue of why the transaction failed. The testimony for the plaintiff goes to show that he, or his assignors, were ready and willing to pay the remainder of the purchase money within sixty days, as stipulated, and offered to do so on the tender of a deed conveying a clear title; that the defendant failed and refused to tender such a deed, tendering instead one which left the land subject to the two deeds of trust mentioned in the petition, and refused to clear it of those deeds of trust, until the purchase money was paid.

The evidence for the defendant goes to show that the plaintiff's assignors, Stephenson and Hall, were unable to raise the balance of the purchase money and never did raise it or offer to pay it, though payment was frequently demanded by Mr. Hruska, as president of defendant company. Hruska testified to tendering a deed several times; stating, as we understand, that he had paid off the smaller of the two deeds of trust and had it in his pocket, but not satisfied of record. He said he did not tell Mr. Hall, who attended to the affair for Mr. Stephenson, that he had paid it. Hruska admitted the $ 8,000 deed of trust had not been satisfied, but said he intended to pay it and did not have to rely on the purchase money to do so; as he could get the money from the St. Louis-Union Trust Company. The effect of Hruska's testimony on this point is that Hall raised no objection to concluding the trade on account of the deeds of trust being unpaid, but said he (Hall) was unable to procure the balance of the purchase money. We shall copy a portion of the testimony of the two witnesses on this point.

John C. Hall swore as follows: "I am in the real estate business in St. Louis and have been for eleven years; I am the same John C. Hall mentioned in the assignment from L. B. Stephenson. I think the first payment on this assignment was made by Mr. Schultz taking the check up to the defendant's office and having the contract signed then; but I am not sure of that. I took the second check up and delivered it to the Barada-Ghio office on Tenth and Chestnut streets. This is my writing on the contract where they receipt for it, except the last clause, which, I think, was written by Mr. Hruska. He called his son up, who he said, held the title, and had him sign the receipt. I don't recollect when Major Stephenson left the city, but it was early in July. He told me when the time was up and the proper deed was made, to go down to the Missouri Trust Company and get the money and close it up. I went there several days before the last day of the contract to see if everything was all right, and spoke to Mr. Frederick about it; he had just been elected secretary, and he didn't seem to know anything at all. I thought there was no use talking to him, so I went back to Mr. Faulhaber, who was treasurer of the company and seemed to be the principal officer. He said it was all right. I think Mr. Frederick thought it was all right, but he didn't know about it. I mean by its being all right that I could get the money when a proper deed was ready. On the last day of the contract Mr. Hruska came in the office and tendered me a deed, but before that we had the abstract run down by the Missouri Trust Company and there seemed to be a flaw in the title. Mr. Hruska came in and handed me a deed, and said, this is the deed to the land and asked for his money. I told him something was the matter with the abstract and we could not pay until that was straightened up. I don't think he said anything about the flaw on that day, but I said; 'Have you cleared the property off?' and he said: 'No, there is an $ 8,000 deed of trust on it.' I said, 'Why don't you pay that off?' and he said; 'We are going to use your money to do that.' I remember him saying that well, and I think that is all that occurred that day. I did not accept the deed, and I certainly must have given him a reason. I felt that Major Stephenson was out of the city, and I wanted to be absolutely sure, in paying his money out on this thing, that it was all right, and it didn't seem to me it was right. I am familiar with the values of real estate in St. Louis."

Cross-examination "I certainly did speak to Mr. Hruska about the defect shown in the certificate of title. To be sure about it I had gone to August Gehner and had him run it down and he reported the same defects. Mr. Hruska said about the $ 8,000 deed of trust, 'We will take that up out of your money,' or words to that effect. I was not willing that he should pay this off out of the purchase money because he had not complied with his agreement. Mr. Hruska tendered me a deed, but I could...