Edwards v. French
| Decision Date | 10 June 1924 |
| Docket Number | 23655 |
| Citation | 263 S.W. 132,304 Mo. 194 |
| Parties | WASHINGTON T. EDWARDS, Appellant, v. T. H. FRENCH et al |
| Court | Missouri Supreme Court |
Rehearing Denied April 7, 1924.
Motion to Transfer to Court in Banc Overruled June 10, 1924.
Appeal from Livingston Circuit Court; Hon. Arch B. Davis Judge.
Reversed and remanded (with directions).
Scott J. Miller for appellant.
(1) In reforming contracts equity does not make new ones. It lets the parties make their own. Its function is to find out if the contracting parties' minds met on a given substantial proposition, that is, it searches out the mutuality, and if by mistake of both the contract asserts to the contrary or is silent, it reconstructs its terms so as to speak the truth. When it has done that the resulting product is the real contract the parties themselves made, and not one the chancellor accommodatingly made for them. Whatever might have been the description used by O'Dell, there is no question of the things that was the subject-matter of the transaction. Fisher v. Dent, 259 Mo. 91. The land to be traded was the 211 acres owned by Edwards and this was the description that was to be put in the contract by the scrivener, O'Dell. It was what French wanted and it was what Edwards intended; it was what O'Dell attempted to write. Both French and Edwards were innocently and mutually mistaken and both agreed if it was a mistake that it should be corrected. O'Dell was the agent, in writing the contract, of both parties. He wrote the contract at the direction of defendant French, and without the presence of Edwards. He was Edwards's agent in making the sale. He wrote it at the direction of French with Edwards absent. His right to write it was confirmed by Edwards when he signed it and there can be no question of the right of reformation. Stephens v. Stephens, 183 S.W. 573; Robinson v Kearns, 250 Mo. 675; Dougherty v. Dougherty, 204 Mo. 238. (2) The evidence shows conclusively that every part of the contract was carried out by the plaintiff to the letter and on time. (3) The evidence is clear that the agent of the plaintiff showed the defendant no land except the 211 acres. It is equally clear from the defendant's testimony that in his two attempted sales of the land he showed the correct lines of the land, traded for by him. The claim of showing other lands is waived by his own testimony. The claim that the land was valued too high in the trade is refuted by the testimony of all of the men who lived in that neighborhood, but this would be no defense.
L. W. Reed and Davis & Ashby for respondents.
(1) It is true the case being in equity will be tried de novo by this court, but the chancellor having seen and heard the witnesses and there being substantial evidence, if not the weight of the evidence, in favor of the finding of the chancellor, this court will defer to the finding of the chancellor. McKinney v. Hawkins, 215 S.W. 253; Williamson v. Frazee, 294 Mo. 320, 332. (2) A bill for the specific performance of a contract is not granted as a matter of right by the court to which it is addressed, but from a just and reasonable discretion. This discretion is not to be exercised in an arbitrary or capricious manner, but is to be governed by sound legal rules and principles. Ivory v. Murphy, 36 Mo. 542; Edwards v. Watson, 258 Mo. 646; Hargis v. Smith, 178 S.W. 72, 75; Beheret v. Myers, 240 Mo. 77. (3) A court of chancery in the exercise of a sound judicial discretion, "often refuses specific performance of a contract which it would not set aside." Gottifried v. Bray, 208 Mo. 660. Defendant may successfully resist a decree for specific performance upon facts which would not justify the setting aside of an executed contract. Ranck v. Wickmire, 255 Mo. 42, 61; Harrison v. Town, 17 Mo. 242; Smith v. Riordan, 223 S.W. 63. (4) Where a party calls for specific performance he must, as to every part of the transaction, be free from every imputation of fraud or deceit, and must show that his conduct has been clear, honorable and fair. Gottifried v. Bray, 208 Mo. 652, 661; Hargis v. Smith, 178 S.W. 72; Wilson v. Henderson, 191 S.W. 72. (5) If, in showing the land to defendant, plaintiff's agent, O'Dell, showed him land that did not belong to plaintiff, and falsely represented it as being a part of plaintiff's farm, plaintiff is bound by said fraudulent representation of his agent, whether he had knowledge of it or not. Laird v. Keithley, 201 S.W. 1138; Shuttlefield v. Neil, 163 Iowa 470. (6) Plaintiff having failed to furnish abstract of title to all of his land, that is, only one hundred and seventy acres thereof, was not able to show that he had done all he agreed to do, and his failure in this regard is sufficient to prevent his prevailing in this proceeding. Ranck v. Wickmire, 255 Mo. 42, 61; Lanyon v. Chesney, 186 Mo. 540, 553. (7) O'Dell, plaintiff's agent, and Stucker, defendant's agent, agreeing to divide the commission paid O'Dell by plaintiff without defendant's knowledge, was sufficient fraud within itself to justify a court of equity to deny specific performance. De Steiger v. Hollington, 17 Mo.App. 382; McClure v. Ullman, 102 Mo.App. 697; Meyer v. Promotion Co., 179 Mo.App. 695; Corder v. O'Neil, 207 Mo. 632. (8) It is true that plaintiff had knowledge that his agent O'Dell was to divide his commission with defendant's agent Stucker, but even though he was ignorant of said fact, nevertheless, he is bound by the fraudulent act of his said agent O'Dell. Marsh v. Buchan, 46 N.J.Eq. 595; Norman v. Roseman, 59 Mo.App. 682.
Suit for specific performance of contract for the sale and exchange of land. The petition seeks to correct the description in the contract for mutual mistake in describing the plaintiff's farm, and to have specific performance thereof as corrected. The contract was for the sale of plaintiff's farm, consisting of 211 acres in Livingston County, to defendant, for $ 175 per acre, fifty acres of land in Texas to be taken by plaintiff at $ 14,000, and the balance, $ 15,750, to be paid in cash December 1, 1920, both tracts to be subject to certain incumbrances thereon.
The answer, besides a general denial, admits the execution of the contract as written and alleges that O'Dell and Stucker were plaintiff's agents, and that plaintiff and his said agents informed the defendant that plaintiff's farm was of the value of $ 175 per acre; that it contained 210 acres and was fertile and productive; that they had a party with the money to make defendant a loan on said land of $ 15,750, the balance to be paid thereon by defendant to plaintiff; that they told defendant French that said Stucker was defendant's agent representing defendant in making said deal, but he was in reality the agent of the plaintiff, and plaintiff and his said agents formed a conspiracy for the purpose of defrauding defendant in making said deal. Further, that plaintiff failed to furnish defendant an abstract showing good and sufficient title in him to said land as required by said contract; that plaintiff and his said agents falsely and fraudulently caused defendant to inspect and examine land which was not owned by the plaintiff and concealed other land owned by the plaintiff, which plaintiff now claims to have been purchased by the defendant in said deal. Further, that defendant has not a good title to said land and has neglected and refused to convey said land to defendant and has not offered or tendered any deed to the defendant. That the representations by plaintiff and his agents to defendant to the effect that said land was of the value of $ 175 per acre, that there were 210 acres thereof, that the same was fertile, productive soil and that they had a party with the money on hand to make defendant a loan of $ 15,750, on said land, were false and untrue, and defendant relied thereon and was deceived thereby and by reason thereof executed said contract. Wherefore defendant prays that said contract be rescinded and for naught held.
The reply puts the new matter in the answer in issue.
We have examined the evidence in this case, both as shown by the appellant's abstract and the respondents' supplemental abstract. We have no difficulty in arriving at a conclusion as to the following facts: We find that there was a mutual mistake in the description of the land of the parties in the written contract as stated in the petition. The testimony is undisputed that the plaintiff, at the time he signed the contract, stated in the presence of defendant French, that he did not know that the "numbers" of his land were properly given in the contract, but if not they would be made proper. The defendant French said the same thing as to the description of his Texas land. Immediately after the contract was signed, both parties made deeds to their respective properties to the other and deposited them in the Jamesport Bank as required by the contract and the properties were properly described in said deeds.
We also find that the defendant French was correctly shown the plaintiff's farm by O'Dell, the plaintiff's agent. It is true that French and his three sons and son-in-law, who accompanied him to examine the farm, testify that O'Dell showed them thirty acres belonging to one Brown, as constituting the northwest portion of the farm, and did not show them the thirty acres which constituted the southeast portion of said farm. But O'Dell and Stucker testify to the contrary, and that the proper thirty acres was shown them. Besides, the undisputed testimony is, including that of the witnesses put on by the defendant French, that the southeast thirty acres is substantially more valuable than the Brown thirty acres. Furthermore, before the time for closing the contract, December...
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