DeSteiger v. Hollington

• Decision Date: 13 April 1885
• Parties: EUGENE DESTEIGER, Respondent, v. WILLIAM HOLLINGTON, Appellant.
• Court: Kansas Court of Appeals

17 Mo.App. 382

EUGENE DESTEIGER, Respondent, v. WILLIAM HOLLINGTON, Appellant.

Court of Appeals of Missouri, Kansas City.

April 13, 1885

APPEAL from Clinton Circuit Court, HON. GEO. W. DUNN, Judge.

Reversed.

The facts sufficiently appear in the opinion of the court.

WILLIAM HENRY, for the appellant.

I. In cases of this character when the contract is denied and the question is as to the contract having been made, no evidence can be received except such as the law requires, i. e written evidence.-- Wright v. Weeks, 25 N.Y. 153; Hook v. Turner, 22 Mo. 333; Wildbahn v Robideaux, 11 Mo. 660. Neither party can connect himself with it by parol evidence.--Wood on Master and Servant, 380; Browne on Frauds, sect. 372; Wright v. Weeks, supra.

II. In order to constitute a valid contract, the parties must agree to the same subject matter in the same sense, and if a party has been misled in regard to any matter which is material to his rights or interest, the contract is void for want of mutuality of agreement.-- Erwin v. Bk. of Ky., 5 Low, Ann. 1; Kyle v. Kavanaugh, 103 Mass. 356; Wright v. McPike, 70 Mo. 175, and cases there cited.

III. What is to be presumed to have been in contemplation of the parties at the time the contract was made, is the measure of damages for the breach.-- Sedgw. on Meas. Dam., 6th ed. 179. Neither remote nor speculative damages are allowed for a mere breach of contract.-- Hughes v. Hood, 50 Mo. 250; Taylor v. McGuire, 13 Mo. 517.

IV. A court has no right to adjudge the recovery of more than 6 per cent. interest on the amount of the principal judgment except when the suit is founded upon a contract expressly providing for a greater rate.--Rev. Stat., sect. 2725.

V. The court erred in refusing instructions asked by defendant, and in admitting incompetent and misleading testimony, especially as to the measure of damages.

T. E. TURNEY and S. H. CORN, for respondents.

I. The memorandum offered in evidence is sufficient under the statute of frauds, and was properly admitted in evidence.-- Willey v. Roberts, 27 Mo. 388; Moore v. Mountcastle, 61 Mo. 424. The description of the property is precise enough for identification, and the contract, being declared on according to its legal effect, was construed by the court and properly admitted.-- Jones v. Louderman, 39 Mo. 290.

II. A principal may sue on a contract made by an agent in his own name, and he is not precluded by the statute of frauds from connecting himself with it by parol testimony.--Story on Agency, 270; Briggs v. Munchon, 56 Mo. 469.

III. When a vendor refuses to convey, the vendee not having paid the purchase money, is entitled to the full value of the premises at the time of the breach of the contract of sale, minus the purchase money, if that value exceeds the amount thereof.-- Kirkpatrick v. Downing, 58 Mo. 32.

IV. The case was fairly tried under proper instructions, and no illegal testimony went to the jury. The allowance of 10 per cent. interest was a clerical error, and may be corrected here. This is not an error against the right and justice of the suit, and does not alter the issues between the parties on the trial, and may be amended by this court.--Rev. Stat., sects. 3582 and 3583. Moreover the attention of the trial court was not called to it by the motion for new trial, nor was any motion in arrest filed; and this court will not reverse unless the error affected the merits of the action.

OPINION

ELLISON J.

This is an action to recover damages from defendant for failure to comply with contract of sale of land, being all of the west part of lot No. 8 in block No. 55 in the town of Cameron.

The suit is based on the following written paper, which was introduced in evidence by plaintiff as the foundation of his claim:

" CAMERON, Mo., Feb. 23d, 1882.

Received of H. S. Beery, the sum of one hundred dollars in part payment of the west part of lot 8 in block 55, including all that part of said lot west and adjoining the brick building now occupied by Hamer & Shean, druggists, which is situated on the east side of the said lot 8 in block 55--total purchase price being $1,500, fifteen hundred dollars.

WILLIAM HOLLINGTON."

It appears from the testimony that the defendant was the owner of the property and desired to sell it to a man living at Kidder who was intending to erect a brick business house thereon; (whether he would sell, or wanted to sell to any one else is a question not agreed in the evidence). He employed, as he states, one H. S. Beery, as his agent to make the sale, authorizing him to sell it for $1,500.00. Beery claims that his employment to sell as agent of defendant was general, and not confined to the " Kidder man." Beery himself, who was introduced by plaintiff, testified:

" I live in Cameron, Mo. I am a real estate agent there. I was employed by Hollington to sell a lot; the west part of lot 8 in Cameron; I believe it is in block 55."

" Defendant signed this paper--this name at the bottom is his signature."

" I made the sale to Doc. DeSteiger as Hollington's agent. It was my money I paid. DeSteiger said he would take the property, but had gone away; so I paid one hundred dollars to Hollington at the time I took the the receipt. I had instructions from plaintiff to buy at $1,500. About two days after the sale I presented to Hollington $1400, for the balance of the price of the property. He refused to take it; said the property was his wife's property. Said he would make a quit claim deed to the property. Hollington knew I was buying for some one else, and not for myself. Don't think he knew who I was buying for. The contract would have been different if I had not been going away from town before the bank opened; that is, I would have taken the receipt in the name of DeSteiger. Plaintiff furnished me the $1400 I offered the defendant. I am acquainted with the property; it is worth $1800 to $2000."

All of the foregoing testimony of the witness was objected to by the defendant but the court overruled the defendant's objections, and admitted the testimony against said objections. To which ruling of the court the defendant then and there excepted at the time.

On cross-examination, the witness testified as follows:

" I don't know what I told Hollington about $1500 being more than the property was worth; probably told him that was more than it was worth. I was interested in getting it for sale at a low figure so I could make sale of it. Hollington tendered back to me the $100 I paid him. I regarded the property cheap at $1500. Hollington gave it to me to sell a week or ten days before it was sold. I was about to effect a sale of the whole property to a Kidder man. At the time of the trade I intended the property for the plaintiff. The agreement was written by James McCray, my partner. He was present when it was signed. At the time he gave the property to me to sell, there was a frame building on it. It was reserved in the sale. It was to be moved off. Hollington said nothing about reserving a stairway. At the time of the sale it was understood that defendant was to have the building. Without the building the property was worth $1800 or more. Hollington did not to my recollection place any restrictions on me as to who I would sell the property to."

James McCray, being produced, sworn and examined on the part of the plaintiff, testified as follows: " I wrote the agreement, and I was present when the defendant signed it. At the time Hollington gave the land to us to sell there was a frame building on it. At the time of the sale I think the property was worth $1800."

Cross-examined.--" I think when Hollington came over to our office a day or two after the sale, he objected to the sale. Said he understood DeSteiger was to get the property. Said he did not want DeSteiger to have it, and said something about a Kidder man that was to have it. He said something about what he thought or about the Kidder man's having it, but I cannot tell what it was now. Have forgotten what he said about the Kidder man's agreement, but there was something said about the Kidder man in connection with the agreement. Defendant met me and we had some conversation after the sale, but I cannot remember what was said. I don't remember that he said the property was to...