Dittmeier v. Laughlin

• Decision Date: 22 June 1923
• Docket Number: No. 17859.,17859.
• Citation: 253 S.W. 777
• Parties: DITTMEIER v. LAUGHLIN.
• Court: Missouri Court of Appeals

253 S.W. 777

DITTMEIER v. LAUGHLIN.

No. 17859.

St. Louis Court of Appeals. Missouri.

June 22, 1923.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Frank L. Dittmeier against Henry D. Laughlin. Judgment for defendant, and plaintiff appeals. Affirmed.

Peers & Peers, of St. Louis, for appellant.

P. H. Cullen, of St. Louis, and Wm. Waye, Jr., of St. Charles, for respondent.

ALLEN, P. J.

This is an action for damages for the alleged breach by defendant of a contract for sale by defendant to plaintiff of a tract of land in St. Charles county. The trial court sustained, defendant's motion for judgment on the pleadings and rendered judgment for the defendant, and the plaintiff 'has brought the case here by appeal.

The petition, filed October 20, 1920, is as follows:

"Plaintiff states that on or about the 16th day of March, 1918, defendant then and there claiming to be the owner of a certain tract of land lying, being, and situated in St. Charles county, Mo., comprising approximately 900 acres, and known as the `Raccoon Ranch,' entered into a contract of writing with the defendant, by which said contract defendant agreed and bound himself to convey to the plaintiff by good and sufficient warranty deed, with merchantable title, free and clear of incumbrance, the said land in said contract fully and particularly described and set out, at and for the price and sum of ($38,000.00) thirty-eight thousand dollars.

"Plaintiff further states that upon the execution of said contract of sale he paid to the defendant the sum of ($500.00) five hundred dollars as earnest money and on account of the purchase thereof, and that the defendant received and accepted said ($500.00) five hundred dollars as part of the purchase price of said property.

"Plaintiff further states that he has perform"" ed all of the conditions of said contract on his part to be performed, and is and was at all times ready, willing, and able to pay to the defendant the balance of the purchase price of said land in accordance with the terms and provisions of said contract of sale, and has demanded of the defendant that he comply with the conditions of said contract of sale and convey to the plaintiff the lands in said contract specified, but that defendant, in direct violation of the terms of said written contract, has failed and refused to convey said lands to this plaintiff, and still fails and refuses to comply with the terms of said written contract, and convey said lands to this plaintiff.

"Plaintiff further says that, by reason and on account of the failure and refusal of the defendant to comply with the terms of said written contract and convey to him the lands therein described, he has lost the use and benefit of said lands, has lost the resale thereof and the profits thereof, and has been put to great expense in connection therewith, all to his damage in the sum of thirty-five hundred ($3,500.00) dollars, for which he prays judgment against the defendant, and for the costs of this suit"

The amended answer of defendant Is as follows:

"Now comes the defendant in the above-entitled cause by leave of court first had and obtained, and for his amended answer to plaintiff's petition herein denies each and every allegation therein contained.

"And, further answering, the defendant states that heretofore, to wit, on the _____ day of _____, 1919, the plaintiff brought an action in the circuit court of the county of St. Charles and state of Missouri against this defendant for the same cause of action as that set forth in the petition of the plaintiff herein, and in said action recovered judgment upon the merits thereof against this defendant for the sum of five hundred twenty-four and 80/100 dollars ($524.80) on June 6, 1919, during the May term, 1919, of said court, which said judgment was thereafter duly satisfied for this defendant, and this defendant sets up and pleads said former judgment in bar of plaintiff's action herein," etc.

On October 26, 1921, plaintiff filed a reply denying "each and every allegation of new matter in said amended answer contained," and on the same day defendant filed a motion for judgment on the pleadings, as follows:

"Now comes the defendant and moves the court to enter judgment for defendant on the pleadings, for the reason the facts set forth in defendant's answer, and which are admitted, constitute a full and complete defense to plaintiff's cause of action."

It appears that this motion was taken up by the court on the day on which it was filed and appellant's abstract of the record recites that the defendant thereupon "presented and exhibited to the court the pleadings, judgment, and record in the former case referred to in defendant's answer." The pleadings in said former suit are set out in full in the abstract before us. The petition therein, filed August 8, 1918, is as follows:

"Plaintiff states that on the 16th day of March, 1918, defendant then and there claiming to be the owner of a certain tract of land lying, being, and situated in St. Charles county, Missouri, comprising approximately nine hundred acres, and known as the `Raccoon Ranch,' entered into a contract of writing with the plaintiff, by which said contract defendant agreed and bound himself to convey to the plaintiff by good and sufficient warranty deed, with merchantable title, free and clear of incumbrance, the said land in said contract more fully and particularly described and set out, at and for the price and sum of $38,000.00, said contract being filed herewith, made a part hereof, and marked `Exhibit A'.

"Plaintiff further states that upon the execution of said contract he paid to the defendant the sum of five hundred ($500.00) dollars as part of the purchase price and consideration for said property, and as earnest money on account of the purchase thereof, and that defendant received and accepted said $500.00 as and for a part of the purchase price of said property, leaving a balance due thereon of $37,500.00.

"Plaintiff further says that, relying upon the representations of the defendant that he was the owner of said property, and could convey the same to plaintiff by good and sufficient warranty deed with merchantable title, as aforesaid, he paid over to the defendant the said sum of $500.00, and immediately took such further steps as became necessary to secure the balance of said purchase price, to wit, the said sum of $37,500.00; that during the time this deal had been pending plaintiff has been unable to negotiate other deals on said property and has lost the profits thereof, and that defendant well knew at the time of the signing of said contract, and at the time he received from plaintiff said $500.00 that he would be unable to convey to plaintiff said property in accordance with the terms of said contract, and would be unable to perform the terms of said contract hereinbefore set out, and fraudulently induced plaintiff to pay over to him the said sum of $500.00 as aforesaid.

"Plaintiff further states that he has often demanded of the defendant that defendant convey to him said lands in accordance with the terms of said contract, but that defendant has failed and refused, and still now fails and refuses, to comply with the conditions of said contract.

"Plaintiff further states that, upon defendant's refusal to comply with the conditions of said contract, he demanded of the defendant that defendant return to him the said $500.00, so paid to said defendant as aforesaid, but that said defendant has failed and refused, and now still fails and refuses, to pay to plaintiff his said $500.00, or any part thereof.

"Wherefore plaintiff prays judgment against the defendant for the said sum of $500.00 so paid to defendant as aforesaid, together with interest thereon at the rate of 6 per cent. per annum from the _____ day of _____, 1918, the date on which defendant received the same, and for punitive damages in the sum of twenty-five hundred ($2,500.00) dollars, and for the costs of this suit."

In the former suit the defendant filed an...