Forgey v. Gilbirds
| Decision Date | 24 November 1914 |
| Parties | ANDREW J. FORGEY et al., v. MARY V. GILBIRDS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Pike Circuit Court. -- Hon. B. H. Dyer, Judge.
Affirmed.
Pearson & Pearson for appellant.
(1) The court erred in entering a decree against appellant: First Because she was not a party to the contract with George W Jacobs. Persons not parties to a contract cannot be required to specifically perform the same. Otto v. Young, 227 Mo. 215; Luther v. Stillwell, 73 Mo. 499; Pomeroy Spec. Perf. Contracts (2 Ed.), p. 210, sec. 147; Fry's Spec. Perf. (5 Ed.), pp. 80, 94 and 171, secs. 205, 167 and 347; 36 Cyc. 595, sec. 6; Waterman on Spec. Perf. (1881 Ed.), pp. 80 and 120, secs. 58 and 92. Second: Because there is no mutuality of either right or remedy as to appellant. Neither appellant nor her interest in the property are mentioned or made known to George W. Jacobs, contracted with or for, by him in this contract. She is in no way privy to this contract -- an absolute stranger. Equity will not specifically enforce a contract and sale of land, unless there be mutuality both as to obligation and remedy. Glass v. Row, 103 Mo. 539; Mastin v. Halley, 61 Mo. 200; Paris v. Halley, 61 Mo. 458; Huff v. Shepard, 58 Mo. 247; Holman v. Conlin, 143 Mo. 378; Davis v. Petty, 147 Mo. 383; Tenny v. Turner, 111 Mo.App. 600. Third: Because no consideration has passed, or been proffered to appellant, by respondent Jacobs for the execution and delivery of a deed to the land in question. Davis v. Petty, 147 Mo. 383; Lipscom v. Adams, 193 Mo. 546; Rosewald v. Middlebrook, 188 Mo. 89. Fourth: Because respondent Jacobs has never purchased nor contracted to purchase from appellant any land, nor the interest in any land owned by appellant. This contract is in the face of the Statute of Frauds, requiring contracts for the sale of real estate to be in writing, and signed by the party to be charged. Sec. 2783, R. S. 1909. (2) Respondents have no standing in a court of equity, seeking to enforce the specific performance on the part of appellant, of a clause in the contract of 1909, favorable and beneficial to them, when they have not performed the whole of that which they contracted to do. Rosenberger v. Jones, 118 Mo. 567; Mastin v. Halley, 61 Mo. 202; Improvement Co. v. Tower, 158 Mo. 292; Secret Service Co. v. Gill-Alexander Mfg. Co., 125 Mo. 156; Clay v. Mayer, 183 Mo. 159. Respondents did not wash their hands before they entered the Supreme Court. They agreed to pay off the remaining incumbrance, in consideration of appellant having deeded to them the remainder interest in all of her property. Appellant caused such a deed to be made. Respondent Sarah J. Forgey now has title to such remainder interest and appellant gets nothing for that interest. Removal of the incumbrances was the consideration to be paid on respondents' part for this remainder interest. The contract of 1909 is not definite and certain. There was no mutuality. Even if enforcible, respondents have not complied with the terms and conditions of this clause of the contract. (3) Appellant would further insist, that she should not be forced to perform this contract made by Forgey with Jacobs, because, it would thereby force the performance of the contract of April 28, 1909. Which contract, as its terms and the evidence in this case show, is: First: A biting, unconscionable contract, supported by a boggy and inadequate consideration; second: Procured by deception and false and fraudulent representations; third: Forced, by the stress of financial embarrassment, after the appellant had been led to believe that respondents were ready and willing to assist her by making an entirely different contract; fourth: That respondents have failed to show a performance on their part of each essential ingredient of the contract, which, by the terms of the contract is to be performed by them; fifth: That by the allegations in the petition, respondents affirmatively show, that they have not complied with the terms of the contract as a condition precedent to their rights to have appellant perform the same on her part; and, that such a decree, would produce injustice; and, would be inequitable, considering all the circumstances of this case. Gottfried v. Bray, 208 Mo. 658; Clay v. Myer, 183 Mo. 158; Holman v. Conlin, 143 Mo. 378; McIlroy v. Maxwell, 101 Mo. 305; McQuay v. Land Co., 230 Mo. 361; Real Estate Co. v. Spellbrink, 211 Mo. 710; Pomeroy v. Fullerton, 131 Mo. 710; Kirk v. Middlebrook, 201 Mo. 288; Rosenwald v. Middlebrook, 188 Mo. 88; Lampton v. Chensy, 186 Mo. 551; Gloeckner v. Kittlaus, 192 Mo. 495.
Frank J. Duvall and Hostetter & Haley for respondent.
(1) In equity suits appellate courts defer largely to the finding of the trial courts on account of the superior vantage ground of the trial judge in observing the demeanor of the witnesses. (2) A party cannot be permitted to avoid the effect of a contract by an assertion that the other party to the contract agreed that its terms should not be binding; nor will the party be permitted to deny that it expresses the agreement which he made; nor can a contract be avoided by one of the parties thereto on the ground that he did not read it (he being sui juris), or that if he read it he did not understand its terms. Jones v. Shaw, 67 Mo. 667; Smith v Thomas, 29 Mo. 307; Bank v. Fesler, 89 Mo.App. 226; Wislizenus v. O'Fallon, 91 Mo. 184; Crim v. Crim, 162 Mo. 544, 54 L.R.A. 502; Mfg. Co. v. Carle, 116 Mo. 591; England v. Houser, 163 S.W. 890; Avery Co. v. Powell, 161 S.W. 335; Beck v. Obert, 54 Mo.App. 240; Ely v. Sutton, 162 S.W. 755; Bank v. Bank, 244 Mo. 594; Berheret v. Myers, 240 Mo. 75. (3) Courts of equity will enforce contracts which are fair and reasonable and will decree specific performance of the same, not as a matter of grace, but as a matter of right. Evans v. Evans, 196 Mo. 1; Kilpatrick v. Wiley, 197 Mo. 123; Pomeroy's Equity Jurisprudence (3 Ed.), sec. 1404; Hardy v. Matthews, 42 Mo. 406; McQuitty v. Wilhite, 247 Mo. 163. It is frequently said (somewhat loosely, we think) that courts grant specific performance of contracts in the exercise of a discretion, thus leaving the inference at least, that it is entirely discretionary with the court whether it will grant the specific performance or not. This is not the correct interpretation to put on such expressions. The discretion mentioned is not an arbitrary, or capricious one, but is a sound judicial discretion, and controlled by established principles of equity as applied to the facts of the case. Land & Lumber Co. v. Blackman, 202 Mo. 307; Kirkpatrick v. Pease, 202 Mo. 493; Berberet v. Myers, 240 Mo. 58; Hunting & Fishing Club v. Hackman, 156 S.W. (Mo. App.) 791. As to the question of mutuality: An undisclosed principal may sue on and enforce a contract made for the sale of realty by his agent in his (the agent's) own name. Davidson v. Hurty, 133 N.W. 862, 39 L.R.A. (N. S.) 324; Schmucker v. Grain Co., 28 Okla. 721. Likewise an agent may contract for the purchase of land for an undisclosed principal and the latter may maintain a suit in his own name and enforce the contract, it being immaterial whether the principal was known or unknown during the transaction, or whether the party supposed he was dealing with the agent personally, and on his own behalf. Kelly v. Thuey, 143 Mo. 438; Pomeroy, Specific Performance (2 Ed.), sec. 89; Fry, Specific Performance (3 Ed.), sec. 238; Otto v. Young, 227 Mo. 193; Randolph v. Wheeler, 182 Mo. 145. A contract for the sale of land may be specifically enforced although it is not signed by both the parties thereto. Mastin v. Grimes, 88 Mo. 478. The remedy of specific performance is based upon the existence of a contract between the parties to the suit or between those through whom they claim. 26 Am. & Eng. Ency. Law (2 Ed.), p. 20. The principle that contracts must be mutual and binding upon both parties does not, it has been held, mean in every case that each party must have the same remedy for a breach by the other, but only that the contract is enforcible on both sides in some manner, not necessarily by specific performance in each instance. 26 Am. & Eng. Ency. Law (2 Ed.), p. 32. (4) Unconscientious conduct and acts by a plaintiff in order to prevent specific performance must be confined to misconduct in regard to or at all events connected with the matter in litigation. Pomeroy's Equity Jurisprudence (3 Ed.), sec. 399. (5) The construction which the parties have placed upon a contract themselves is strongly persuasive with a court in interpreting its meaning. The defendant in a suit for specific performance who had theretofore acted on the contract as it was understood by the plaintiff is bound thereby, and cannot set up the defense that the contract was to be construed differently, and that the plaintiff had refused to carry it out according to such different construction. 26 Am. & Eng. Ency. Law (2 Ed.), p. 42. Mrs. Gilbirds in her arrangement with Dr. Morrow conceded by the express terms of the deed that it was absolutely necessary that the land should be sold so as to provide the money with which to pay off the encumbrances; and in the contract with Mr. and Mrs. Forgey of April 28, 1909, in addition to it being expressly provided that they should sell the land and use the money derived therefrom in discharging the remaining encumbrances, to-wit, the $ 5800, Mrs. Gilbirds herself acted upon the theory that it was the meaning of that contract that Mr. and Mrs. Forgey should sell sufficient land to pay off the remaining encumbrances, but her chief objection was to them selling the home tract. She will not now be permitted under the authorities to claim a different interpretation of the contract from that which she...
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