Downing v. Anders

• Decision Date: 01 April 1918
• Docket Number: No. 11936.,11936.
• Parties: DOWNING v. ANDERS.
• Court: Missouri Court of Appeals

202 S.W. 297

DOWNING v. ANDERS.

No. 11936.

Kansas City Court of Appeals. Missouri.

April 1, 1918.

Appeal from Circuit Court, Platte County; A. D. Burnes, Judge.

"Not to be officially published."

Action by Joseph Downing against David W. Anders. From a judgment for defendant, plaintiff appeals, Leon Downing, administrator of plaintiff's estate, being substituted as appellant after plaintiff's death. Affirmed.

Frank Settle and James H. Hull, both of Platte City, for appellant. Guy B. Park, of Platte City, for respondent.

TRIMBLE, J.

Joseph Downing brought this action for money had and received. It was a deposit made by him with defendant David W. Anders (acting for the heirs of James K. Anders), as the initial payment on the purchase price of a farm plaintiff contracted to buy of said heirs. Upon a trial, the jury returned a verdict for defendant, and plaintiff appealed. Thereafter said appellant died, and his administrator was duly substituted in his place, but it will be understood that wherever we hereinafter speak of plaintiff we refer to the deceased and not to the administrator.

In the latter part of February, 1913, plaintiff entered into a written contract with said heirs for the purchase of 240 acres of Platte county land. Five hundred dollars on the purchase price was deposited with defendant and on March 1, 1913, plaintiff was to pay a portion of the balance in cash and execute his notes, one due March 1, 1914, and the other due March 1, 1915, for the remainder, both secured by deed of trust as a first lien on the land. The contract contained the following provisions:

"The sellers agree to furnish within ten days from the date hereof, at the office of the Park Bank, Parkville, Mo., a complete abstract of title to the above property, certified by a competent abstracter, from the government to this date, including certificates in full as to taxes, judgments and other liens. The buyer is to have ten days thereafter for the examination of the abstract and to report to the sellers at said bank, any defects in the title. If the title be found to be defective, the sellers agree to have the same rectified within a reasonable time from the date of written notice of such defects; but in case such defects in the title cannot be remedied within that period and no extension of time is had between the parties hereto, this contract shall be null and void, and the money deposited as aforesaid shall be returned to the buyer, and the abstract to the seller. If, after such correction (if any required) as sellers shall be able to make, it is found that the sellers have a good title in fee to the property, they agree upon receipt of the remainder of the cash purchase price which is to be paid March 1, 1913, to deliver to the buyer at said bank, good and sufficient deed or deeds of warranty, conveying said real estate to him by good title free and clear of all liens and incumbrances whatsoever; and concurrently therewith, the buyer is to execute and deliver to the seller at said bank, the notes and deed of trust hereinbefore referred to. If the title be good and, upon delivery of deed as herein provided, or tender thereof, the buyer fails to comply herewith on his part, by paying the balance of the cash purchase price and executing the notes and deed of trust aforesaid, the money deposited as aforesaid shall be forfeited by the buyer; and, upon such forfeiture this contract may or may not thereafter be operative at the option of the sellers. Time is of the essence of this contract."

The abstract of title was delivered to plaintiff about the 19th of February, 1913, who at once forwarded it to his attorney in Kansas City, Kan. After examining it, he returned it by mail to the defendant on March 7, 1913 (after the date at which payment of the additional cash and notes were to be made), with a written opinion specifying the defects in the title and the requirements needed to correct same. In said opinion plaintiff's attorney stated that:

"It will be less expensive for the present holders of the title to secure a decree in the circuit court quieting and confirming their title as against these various outstanding interests' of record, and in that way cure all defects and irregularities. This will result in a ranch better and more satisfactory title for you also."

Upon receipt thereof, defendant went to plaintiff, and showed him the requirements; and it was there discussed, understood, and agreed betweeen them that, in accordance with the attorney's suggestion, a suit would be brought by the heirs at the next or September term of the circuit court of Platte county, to quiet the title, that being the first term to which the suit could be brought. Thereupon the suit was brought, and at the September term a decree was obtained. In the meantime certain affidavits called for in the requirements of plaintiff's attorney were procured and attached to the abstract. The deed conveying the land from the heirs to plaintiff was placed in the bank named in the contract as the place of delivery to plaintiff, and the latter was duly notified thereof by the cashier.

As soon as the decree was rendered, the abstract was brought down to date so as to include the proceedings to quiet title, and, with the required affidavits attached, was tendered to plaintiff. He refused to accept same, or to have it examined or to consummate the trade. He claimed at that time, and also in his evidence at the trial, that in March, 1913, the defendant and several of the other heirs had demanded that he pay the money specified in the contract as due March 1st, but that he had refused to pay owing to the condition the title was in at that time, and that defendant and said heirs thereupon told him if he did not pay by the following Saturday night the deal would be off. He testified that he was not presented with any corrected abstract, and that he was not notified that the deed was at the bank for him. He did testify, however, that defendant in 'September, 1913, asked him if he were going to close the deal, and that he told him he was not; that he had made no preparations to do so, as the deal had been called off, and that was the end of it with him. Defendant's evidence denied that any such demand for the money had been made, or that the deal had been declared off. There was also evidence in defendant's behalf tending to show that plaintiff had Made a number of efforts, after the time at which he claimed the trade had been abandoned, to obtain the money to pay for said land, but had been unsuccessful. Concerning these conflicts in the testimony, and especially with reference to the conflict over whether the trade was mutually abandoned or declared off, the facts as claimed by defendant must be accepted as true, since the verdict was in his favor. It is clear from plaintiff's own evidence that his refusal to go on with the trade, after the decree had been rendered, was not placed on any ground other than that the trade had been mutually abandoned or declared off; and, as stated in the light of the verdict, we Must regard plaintiff as having been tendered the corrected abstract and as having refused to accept or examine same, and as assigning an untenable reason for not complying with his contract. However, it would seem that though plaintiff did refuse to examine the corrected abstract when tendered, and even...