Davis v. Baradaghio Real Estate Company

• Decision Date: 06 February 1912
• Parties: WALTER N. DAVIS, Respondent, v. BARADAGHIO REAL ESTATE COMPANY, Appellant
• Court: Missouri Court of Appeals

143 S.W. 1108

163 Mo.App. 328

WALTER N. DAVIS, Respondent, v. BARADAGHIO REAL ESTATE COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

February 6, 1912

Appeal from St. Louis City Circuit Court.--Hon. Daniel G. Taylor Judge.

AFFIRMED.

Judgment affirmed.

Collins & Chappell for appellant.

All of the decisions and text-books announce the rule that when a party to a contract with concurrent and dependent conditions comes into court and asserts that he is invested with a right of action on such contract, he must allege and prove, either first, an offer to perform on his part and a mere failure to perform on the part of the other party to the contract. Bishop on Contracts, sec. 1433; Fuller v. Hubbard, 6 Cow. 13; Ishmael v. Parker, 13 Ill. 324; Small v. Reeves, 14 Ind. 163; Fuller v. Williams, 7 Cow. 53; Kane v. Hood, 13 Pick. 281; Runkle v Johnson, 30 Ill. 328; Stokes v. Burrell, 3 Grant (Pa.) 241; Dana v. King, 2 Pick. 155; Brown v. Gammon, 14 Me. 276; Howe v. Huntington, 15 Me. 350; Hunt v. Livermore, 5 Pick. 395; Perry v. Wheeler, 24 Vt. 286; Mfg. Co. v. Armstrong, 19 Me. 147; Leaird v. Smith, 44 N.Y. 618; Mackay v. Dick, 6 App. Cas. 251; Price v. Sanders, 39 Ark. 306; Sav. Soc. v. Hildreth, 53 Cal. 721; Hedge v. Gibson, 58 Iowa 656; Davis v. Barada-Ghio, 115 Mo.App. 327; or, second, he must prove a failure of the other party which is not a mere failure, but a failure combined with a repudiation of the contract, or combined with a condition so preventing compliance that an offer would have been useless. Pursley v. Wood, 94 Mo.App. 389; Horwood v. Delmar, 41 Mo.App. 48; Soap Works v. Sayer, 55 Mo.App. 15; McManus v. Gregory, 94 Mo.App. 370.

Glendy B. Arnold for respondent.

(1) The demurrer was properly overruled. Where the vendor agrees to convey land free and clear of encumbrances, the existence of encumbrances on the land, at, or during the time fixed for the conveyance, is a breach of the contract by the vendor, rendering him, in law, incapable to convey. Morange v. Morris, 3 Keyes (N.Y.) 48; Gormley v. Kyle, 137 Mass. 189. (2) If the vendor is unable to convey the land, as agreed, the vendee is not required to make a tender of the purchase money in order to maintain an action for damages for the breach. Bedell v. Smith, 37 Ala. 619; Irwin v. Askew, 74 Ga. 581; Clark v. Weis, 87 Ill. 438; Mathison v. Wilson, 87 Ill. 51; Nesbit v. Miller, 125 Ind. 106; Auxier v. Taylor, 102 Ia. 673; Damon v. Weston, 77 Ia. 259; Miller v. Whittier, 32 Me. 203; Lowe v. Harwood, 139 Mass. 133; Gormley v. Kyle, 137 Mass. 189; Newcomb v. Brackett, 16 Mass. 161; Bennett v. Phelps, 12 Minn. 326; Walton v. Wilson, 30 Miss. 576; Davis v. Real Estate Co., 115 Mo.App. 327; Reynolds v. Reynolds, 45 Mo.App. 622; Lawrence v. Miller, 86 N.Y. 131; Davis' Adm. v. Van Wyck, 64 Hun (N.Y.), 186; Broadhead v. Reinbold, 200 Penn. St. 618; Nevins v. Thomas, 80 Tex. 596.

CAULFIELD, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

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, sec. 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. Barade-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 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 $ 3231.25, 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 $ 1500 paid to it by Stephenson, and in consideration thereof agreed that, for the further sum of $ 23,500 to be paid, $ 1500 in thirty days and $ 22,000 in sixty 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 $ 1500 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. And to this, plaintiff avers that within sixty 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 encumbered the same with another deed of trust made by him which encumbrance 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 party who had performed, for damages or to enforce performance; that it was necessary to show that Stephenson or his assignee was ready and willing to perform the contract on his part and offered to do so, he being the one bringing the action, but it was not necessary for Stephenson actually to have tendered payment. "If Stephenson was willing and able to pay the purchase money and offered to do so and Hruska (defendant's president) raised no objection to the offer because the cash was not proffered, the offer itself was performance by Stephenson." Now on this appeal, which is by the defendant, the defendant complains of but two alleged errors, which we will state and dispose of in their order.

I. The first of these alleged errors is that the trial court erred in refusing to give defendant's demurrer to plaintiff's evidence, defendant contending that such demurrer should have been given because such evidence failed to show that Stephenson or anyone acting for or under him ever offered to perform the contract on his part and, therefore, the plaintiff failed to make a prima facie case under the rule laid down on the former appeal. In the opinion on such former appeal, when the evidence in this respect was substantially the same as it is now, this court said in the statement of facts: "The testimony for the plaintiff goes to show that he, or his assignors, were ready and willing to pay the...