Edwards v. Watson

• Decision Date: 02 June 1914
• Parties: FRANK R. EDWARDS, Appellant, v. W. R. WATSON, Administrator of Estate of J. F. KILLINGSWORTH, and FARMERS BANK OF ASH GROVE,
• Court: Missouri Supreme Court

167 S.W. 1119

258 Mo. 631

FRANK R. EDWARDS, Appellant, v. W. R. WATSON, Administrator of Estate of J. F. KILLINGSWORTH, and FARMERS BANK OF ASH GROVE,

Supreme Court of Missouri, First Division

June 2, 1914

Appeal from Greene Circuit Court. -- Hon. J. T. White, Special Judge.

Reversed and remanded (with directions).

Hamlin & Seawell for appellant.

(1) The agreement signed by the parties on July 7, 1908, and the deed and check executed on same day, all should be considered together, and when that is done they constitute a valid contract between the parties and fully comply with the statute in regard to the sale of real estate. Y. M. C. A of Kansas City v. Dubach, 82 Mo. 475; Peycke Bros v. Ahrens, 98 Mo.App. 456; 20 Cyc. 263; Ryan v United States, 136 U.S. 447. (2) The papers heretofore referred to contained a sufficient description of the property to take the case out of the Statute of Frauds, and especially to admit oral evidence as to same. Black & Snyder v. Crowther, 74 Mo.App. 480; Smith v. Wilson, 160 Mo. 657; Printing Co. v. Belcher, 127 Mo.App. 133. (3) The description of the real estate as set out in the deed executed by Defendant Killingsworth is not correct, but the same may be corrected in this proceeding, and parol evidence is admissible to show the correct description. Smith v. Wilson, 160 Mo. 657; Abbott v. Dunivin, 34 Mo. 148. (4) This is the proper proceeding. Luckett v. Williamson, 31 Mo. 54; McClurg v. Phillips & Paul, 49 Mo. 315; Harman v. Blackstone, 61 Mo.App. 254; Martin v. Nixon, 92 Mo. 26; 26 Am. & Eng. Ency. Law, 16. The contract in this case is clear, definite and certain and should be enforced. Coal Co. v. Long, 231 Mo. 605.

Patterson & Patterson for respondents.

(1) The first insuperable barrier to plaintiff's recovery was his inability to perform his part of the contract, that is, pay the purchase price, either at the time of bringing the suit or during the life of the contract, or any other time. 3 Pomeroy's Eq. Jur. (2 Ed.), secs. 1407, 1408; Clay v. Mayer, 183 Mo. 159; Craig v. Van Bebber, 100 Mo. 589; Baker v. Clay, 101 Mo. 553; Hollman v. Conlin, 143 Mo. 369; Langon v. Chesney, 186 Mo. 540; Gloeckner v. Kittlaus, 192 Mo. 477; Rosenberger v. Jones, 118 Mo. 559; Secret Service Co. v. Electric Mfg. Co., 125 Mo. 140. (2) The plaintiff cannot recover because the contract sued on is obviously so vague, uncertain and indefinite in its terms that its full meaning cannot be determined from its language. 3 Pomeroy's Eq. Jur. (2 Ed.), sec. 1405, p. 2162; Mastin v. Halley, 61 Mo. 196; Taylor v. Williams, 45 Mo. 80; Underwood v. Underwood, 48 Mo. 527; Cherbonnier v. Cherbonnier, 108 Mo. 252; Butler v. Murphy, 106 Mo.App. 28; Wallace & Eaves v. Figone, 107 Mo.App. 362; Wendover v. Baker, 121 Mo. 290; Cable v. Jones, 179 Mo. 606; Rosenwald v. Middlebrook, 188 Mo. 58; Coal Co. v. Long, 231 Mo. 611. (3) The plaintiff cannot recover because of his effort to conceal from the defendant the evidence of obligation deposited with the Farmers' Bank of Ash Grove, Missouri. 3 Pomeroy's Eq. Jur. (2 Ed.), secs. 1405, 1465; Duretts v. Hook, 8 Mo. 374; McElroy v. Maxwell, 101 Mo. 294. The contract that is at the basis of this suit was placed in the custody of the bank at Ash Grove with the written instruction that the envelope containing it should not be opened unless both parties were present requesting it. The plaintiff had the title examined and discovered that there was a record defect bearing date of about the year 1840. It was then that the provision of the contract, to-wit, "that the aforesaid Killingsworth agrees to prepare and perfect title," first assumed form and meaning to plaintiff's mind. It was then that he had his first intimation that this provision imposed the obligation on Killingsworth to bring suit for the record title. It was then that he noised this duty of Killingsworth about, that it might come to his ears. And instead of freely and willingly permitting Killingsworth to take a copy of the contract or see the contract at the bank in literal compliance with the bank's instructions, he prevented Killingsworth from having either copy or inspection prior to the institution of this suit. Such conduct proved a disposition on the part of the plaintiff to take an unfair and undue advantage of the defendant, and brings plaintiff's suit within the purview of the doctrine that "he who seeks equity must come into court with clean hands."

BROWN, C. GRAVES, J. Blair, C., concurs.

OPINION

ON QUESTION OF REVIVOR.

BROWN C. --

This suit was instituted October 26, 1909, against Killingsworth and the Farmers Bank, to obtain specific performance of a contract to convey land in Greene county and incidentally to reform the written contract by correcting the description of the land Among other things the petition states

"That on said date to-wit, July 7, 1908, the plaintiff purchased said real estate from the defendant for the price and sum of $ 3850, and entered into a written contract with defendant whereby they agreed as follows: that the plaintiff would pay for an abstract of title, and the defendant would furnish plaintiff a perfect title to said real estate, and deliver him possession of same between the first and 15th days of August, 1908, and allow plaintiff one-third of all crops grown on sixty-four acres of said premises in the year 1908 (except the orchard) and that plaintiff should have reasonable time to procure an abstract and a loan on said real estate, and the defendant was to have a reasonable time to perfect his title if it should be defective, and on said day executed a general warranty deed to plaintiff, intending by said deed to convey the aforesaid described real estate, and plaintiff drew his check on the Bank of Ash Grove, for the sum of one hundred dollars, payable to the said Farmers Bank, and plaintiff and defendant J. F. Killingsworth delivered the possession of said written contract, check and deed, to the Farmers Bank aforesaid, which were enclosed in an envelope and deposited with the said bank, with the understanding and agreement on the part of the plaintiff and defendants that the said defendant, Farmers Bank, would hold said papers until called for by both parties, to-wit, the plaintiff and J. F. Killingsworth, and would deliver up said papers when requested so to do by said parties."

It also charges, in substance, an offer to pay the consideration, and his readiness still to do so, and brings the amount into court. It also specifies certain damages which plaintiff claims to have suffered from the non-performance of the contract, and concludes as follows:

"Wherefore plaintiff prays the court to ascertain the amount necessary to perfect said title in accordance with said contract, and the value of the crop belonging to plaintiff on said premises, and the rent value of the same from the 12th day of August, 1908, and the damages accruing to plaintiff by reason of being deprived of said premises. And that the possession of said premises be delivered to plaintiff, and all right, title and interest of defendant therein be decreed and vested in plaintiff upon the payment of the sum found due the defendant by him, and in the event the court should find that plaintiff is not entitled to a specific enforcement of said contract, then plaintiff prays for the sum of $ 1500 as damages by reason of its breach and for other proper relief."

A trial was had before the court without the intervention of a jury on October 27, 1909, resulting in a judgment for defendants dismissing the petition. The case was treated throughout as one for equitable relief. This appeal was returnable to the April term, 1910, of this court. Killingsworth died in February, 1910, and on the 5th day of the following month the defendant Watson became administrator of his estate. On January 11, 1912, and during the October term, 1911, the death of Killingsworth was suggested in this court and a scire facias was issued to the administrator returnable on the first day of the next term. On March 12, 1913, the abstract of record and brief were filed by appellant, and on April 12th the respondents by their attorneys filed their brief.

The heirs of Killingsworth have, during the present term, appeared for that purpose only, and filed their motion to dismiss the cause for the reason that it has not been revived by substituting them as defendants, and the question is presented whether we should proceed with the parties now before us to finally dispose of this appeal.

It has been uniformly held by this court that, although new parties as successors to those who may have died during the pendency of the appeal, can only be substituted in the mode pointed out by the statute, that is to say, upon voluntary appearance and consent of the adverse party, or after service of summons issued for the purpose of revivor on such party ( Jeffries v. Flint, 55 Mo. 29), yet on the death of one of a number of appellants a cause may proceed without a revivor. [Reineman v. Larkin, 222 Mo. 156, 121 S.W. 307; Reed v. Colp, 213 Mo. 577, 112 S.W. 255; St. Louis v. Brinckwirth, 204 Mo. 280, 102 S.W. 1091; Prior v. Kiso, 96 Mo. 303, 9 S.W. 898.] These cases, however, apply each to its own facts, and there is nothing in them that suggests that the court thought it impossible that circumstances might arise in which the interests of the parties ranged on the same side as appellants might in fact be so adverse that they would need protection from each other. The Legislature seemed to have some such notion when it expressly required, in what is now section 2074, Revised Statutes 1909, that the survivors on either side should suggest the death of any of their own associates which might occur up to the very time of the submission. This notifies the...