Fleming v. Anderson

• Decision Date: 06 June 1921
• Parties: FLEMING v. ANDERSON.
• Court: Missouri Supreme Court

232 S.W. 718

FLEMING v. ANDERSON.

Supreme Court of Missouri, Division No. 1.

June 6, 1921.

Rehearing Denied July 11, 1921.

Appeal from Circuit Court, Newton County; Charles Henson, Judge.

Action by Laura A. Fleming against C. M. "Anderson. Judgment for plaintiff, and defendant appeals. Affirmed.

J. F. Joines and O. L. Cravens, both of Neosho, for appellant.

Chas. E. Prettyman, Jr., of Neosho, for respondent.

RAGLAND, C.

This suit was commenced as an action in ejectment; it was converted into one in equity by the answer, which set up a contract of sale of the premises in controversy and prayed its specific enforcement. The pleadings were sufficient to afford a foundation for the reception of the evidence that was introduced, and a statement of the latter will disclose the contested issues.

Plaintiff, a negro woman, owned a small house and two lots in the city of Neosho. She formerly resided there, but since 1904 had been living at Muskogee, Okl. One Steven Washington, also a negro, was a preacher, living at Neosho; he was pastor of one of the negro churches at that place. Some time in June, 1917, he was visiting in Muskogee and became acquainted with plaintiff. She told him of the property she owned at Neosho, that she desired to sell it, that she wanted $600 for it, and that if he would find a buyer at that price she would give him $50. He thereupon prepared the following writing, which they both signed:

Exhibit B.

                           "Muskogee, Okla., June 23, 1917
                

"This to certify that Party of the first Party did turn over to Party of the cescon Party the sam reaial piece of propaty that belong to her for to sal or rent sam and me turn over $550 for the seal of pleace and 75 pro cent of the rent and 25 pro cents for his work and all over $550 gos to him party of cescon Party.

                                        "Steven Washington
                

"This is the first party.

                                      "Mrs. L. S. Fleming."
                

Washington, shortly after his return to Neosho, opened negotiations with defendant with a view to selling him plaintiff's property. While these negotiations were pending, and before any agreement had been reached, on June 30, 1917, Washington had Mr. A. R. Dunn, a lawyer of Neosho, prepare a deed from plaintiff to Anderson; this deed Washington mailed to plaintiff with a letter as follows:

Exhibit G.

"Mrs. A. L. Fleming:

"You go before a notry public and sing this and send it wright back to me and I will close the del and send you your money.

                  "Your                    S. Washington."
                

Plaintiff's real estate was not correctly described in the deed, and she returned it to Washington with a letter of which the following is a copy:

Exhibit I.

"Mr. Steven Washington, Neosho, Mo.—Dear Sir: I received you letter also a deed for me to acknowledge. But the deed you send me is not the proper deed to my place it is the rouge no. of lot and also in the ronge addition so I will send you the rite no. my property is on Block 2 and Lots 1 & 2—in the Honing addition.

"So Mr. Washington please conciter this at once and soon as you can send me the rite deed and will sign at once.

                  "Truly yours,        Mrs. D. Fleming."
                

Upon receipt of this letter and deed, Washington took them to Mr. Dunn, who, after examining the records for himself, prepared a second deed. At the same time he wrote a letter to plaintiff for Washington, and the latter signed it. Both were mailed to plaintiff July 2, 1917. The letter was as follows:

Exhibit A.

"A. R. Dunn, Lawyer.

                              "Neosho, Missouri, July 2, 1917
                

"Mrs. Laura A. Fleming, Muskogee, Oklahoma —Dear Madam: In reply to your favor of recent date relative to transfer of property here in Neosho, will say that I am returning deed to you and would suggest that you sign the same and have it acknowledged before a notary public and return it to the Savings Bank of Neosho, with instructions to turn the same over to me when I deposit the $550 in the bank to your credit. This will make you absolutely safe and will help me to get the deal through at once. Unless this is done I will be unable to close the matter and therefore ask that you do this at once.

                  "Very truly yours
                                     "Steven Washington."
                

At the time this last letter was written, Washington and defendant had come to an agreement with respect to the terms of sale, but the agreement had not been reduced to writing. On the next day they executed the following contract:

Exhibit F.

"Contract.

"This contract, made and entered into this 3d day of July, 1917, by and between Steven Washington, as agent for and in behalf of Laura Ratliff, as party of the first part, and C. M. Anderson, of the city of Neosho, Missouri, as party of the second part, witnesseth: That the party of the first part, for and in consideration of the agreements and covenants hereinafter set forth, agrees to sell, transfer, and deliver by' good and sufficient warranty deed the Laura A. Ratliff property, located in the city of Neosho, Missouri, a more complete description of which will appear on the face of the warranty deed to be deposited in the Neosho Savings Bank of Neosho, Missouri.

The said C. M. Anderson agrees, in consideration of the transfer of the property above set forth, to transfer to the said Steven Washington, as Agent aforesaid in behalf of the said Laura A. Ratliff, one Ford car, 1912 model, at a consideration of $145, said car to be in first-class mechanical condition and clear of all incumbrances; also one horse (stallion) at a consideration of $300; the above said car and horse to be applied on the payment of the above-mentioned real estate at the figures above mentioned; also to pay to the said Steven Washington the cash sum of $100 upon the signing of this contract, the remainder of said purchase price, to wit, the sum of $55 to be paid in monthly installments at the rate of $10 per month, to be paid on the 1st day of each and every month after the signing of this contract, making a total sum of $600 as the consideration for the transfer of said real estate.

"It is further agreed that the said warranty deed signed and acknowledged by the said Laura A. Ratliff shall be placed in escrow in the Neosho Savings Bank aforesaid to be delivered by said bank to the said 0. M. Anderson upon satisfactory proof of the payment of the balance of the purchase price of said real estate, to wit, the sum of $55. It being understood that the said sum of $55 is the amount due from said C. M. Anderson after the transfer of the said car and horse aforesaid and the payment of the cash sum of $100 above mentioned.

"In testimony whereof we have hereunto set our hands this 3d day of July, 1917. Steven Washington, Acting as Authorized Agent for and in Behalf of Laura A. Ratliff. C. M. Anderson."

On the day that the contract was signed defendant paid Washington $100 and turned over to him the horse and car therein described. The automobile was in a garage at the time being repaired. Washington put defendant into possession of the premises about July 10, 1917, and the latter shortly thereafter expended from $110 to $115 in making repairs. On July 19, 1917, plaintiff mailed the deed to the Savings Bank of Neosho, with the following letter of instructions:

Exhibit E.

                           "Muskogee, Okla., July 19, 1917
                

"To the Savings Bank of Neosho, Mo. Respectfully. You will find in closed a Warranty deed signed to Mr. C. M. Anderson and the same is acknowledged by myself, Laura A. Fleming. Now please turn over this said deed when you have already received the $600, six hundred dollars, cash. Then please send the draft directly to me for 550 Laura A. Fleming 716 N. 3 St. I am expecting this atended to at once by the parties through this meduem and the remainder to Steven Washington.

                  "Respectifly          Laura A. Fleming."
                

On the same day she sent the deed to the bank she wrote Washington as follows:

"Muskogee, Okla., July 19, 1917. "Mr. Steven Washington dear Bro. in Christ. This will inform you that the deed is now waiting at the Neosho Savings Bank and I am anyiously waiting for the money and all of the 550 I have writen to the Bank like wise please atend to this at once And oblige Mrs. L. A. Fleming, 716 N. 3 St."

It seems that plaintiff did not properly subscribe the deed, and that it was returned to her for signature, as indicated by the following letter:

Exhibit L.

"Neosho Savings Bank. "Incorporated 1885.

"Capital Stock $60,000.00.

                               "Neosho, Mo., July 21, 1917.
                

"Laura A. Fleming, Muskogee, Okla.—Madam: Deed received, but you failed to sign it on bottom. We return it for your signature. Respectfully, Neosho Savings Bank, Neosho, Mo. (W)"

Subsequently the following letters were exchanged between plaintiff and the bank, and between plaintiff and Washington, as indicated by them:

Exhibit O.

                         "Muskogee, Okla., July 30, 1917.
                

"to the Neosho Savings Bank

"Dear Sir: I am writing you to lurn if posable what is the delay now that I have not got the money for my place there I was under the empress that that would be a cash down deal please let me know what about it I was selling this place through Mr. Washington and I dont here from him any more now please let me know what turms they expect to settle on if any and oblige. L. A. Fleming, 716 N. 3 St."

Exhibit J.

                              "Muskogee, Okla., August 4th, 1917.
                

"Mr. Steven Washington Dear Sir: I received your letter in regards to the deed you sent back for my signatur I have signed and send it back more than 10 days ago and have got returns from the Bank stating that they are waiting your apperrince so I waite yours return as soon as posible. Yours, L. A. Fleming, 716 N. 3 St."

Exhibit N.

                              "Neosho, Mo. Augus 4th, 1917
                

"Mrs. L. A. Fleming Dear Sister: I received your letter and in replie will say I will just as soon as posbil I will pay to the Bank balance of $550. They is the balance of one $100 to pay yet of which will be in the nex 30 days...