Frederich v. Union Elec. Light & Power Co.

• Citation: 82 S.W.2d 79,336 Mo. 1038
• Parties: J. H. Frederich v. Union Electric Light & Power Company, a Corporation, Appellant
• Decision Date: 17 April 1935
• Court: United States State Supreme Court of Missouri

82 S.W.2d 79

336 Mo. 1038

J. H. Frederich v. Union Electric Light & Power Company, a Corporation, Appellant

Supreme Court of Missouri

April 17, 1935

Appeal from Johnson Circuit Court; Hon. Leslie A. Bruce Judge.

Reversed and remanded (with directions).

Edgar Shook for appellant; Baker, Botts, Andrews & Wharton of counsel.

(1) Specific performance will not be decreed in favor of one who has not proved his ability to convey a good and merchantable title when his title is denied. 58 C. J. 1190, sec. 542; Pomeroy's Specific Performance of Contracts (3 Ed.), pp 744, 745, sec. 342; Pomeroy's Specific Performance of Contracts (3 Ed.), p. 752, sec. 347; 25 R. C. L. 274, sec 75; Luckett v. Williamson, 31 Mo. 54; Greffet v. Willman, 21 S.W. 459, 114 Mo. 118; Rosier v. Graham, 48 S.W. 471, 146 Mo. 361; Barthel v. Engle, 168 S.W. 1155, 261 Mo. 311. (2) If an offeror under an honest mistake of fact as to a material matter makes an offer to an offeree who has knowledge of such mistake or is put upon his inquiry, such a contract may be avoided. 1 Page on Contracts, sec. 280, p. 428; 13 C. J., sec. 258, p. 374; Lawson on Contracts (2 Ed.), 270, sec. 515; Black on Rescission & Cancellation (2 Ed.), p. 401, sec. 130; Buckberg v. Washburn Crosby Co., 115 Mo.App. 701; Harran v. Foley, 22 N.W. 837, 62 Wis. 584; Everson v. International Granite Co., 27 A. 320, 65 Vt. 658; Mercer v. Hickman-Ebbert Co., 105 S.W. 441, 32 Ky. L. 230; Tyra v. Cheney, 129 Minn. 428, 152 N.W. 835; Hudson Structural Steel Co. v. Smith & Rumery Co., 110 Me. 123, 85 A. 384; Mummenhoff v. Randall, 19 Ind.App. 44, 49 N.E. 40; Barteldes Seed Co. v. Bennett-Simms Mill & Elevator Co., 161 S.W. 399; Hume v. United States, 132 U.S. 406; Hardman Lumber Co. v. Keystone Mfg. Co., 103 S.E. 282, 86 W.Va. 404. (3) Equity will not decree specific performance of a contract when an offeror has made an honest mistake as to a material matter even though such mistake is unknown to the offeree when an enforcement of such a contract would be inequitable and unjust. Pomeroy, Specific Performance of Contracts (3 Ed.), sec. 245, p. 592; 58 C. J. 962, sec. 143; Fry on Specific Performance (3 Ed.), sec. 721; 2 Pomeroy, Equity Jurisprudence, sec. 860; Kerr on Fraud and Mistake, p. 411; 25 R. C. L., sec. 44, p. 241; Hastings v. Montgomery, 122 S.E. 155; Mansfield v. Sherman, 81 Me. 365; Burkhalter v. Jones, 32 Kan. 5; Kelley v. York Cliffs Imp. Co., 94 Me. 374, 47 A. 898; Chaplin v. Korber Realty Co., 224 P. 396, 29 N. M. 567; Moore v. McKillip, 110 Neb. 575, 194 N.W. 465; Diffenderffer v. Knoche, 118 Md. 189, 84 A. 416; Baker v. Polydisky, 174 N.W. 526, 144 Minn. 72; Electric Ry. Co. v. Curtis, 154 Mo. 10, 55 S.W. 222. (4) Equity will not decree specific performance of a contract when an offeror has made an honest mistake of fact as to a material matter, which mistake is known to the offeree at the time the offer is made. 58 C. J. 961, sec. 143; 25 R. C. L. 241, sec. 44; Nadeau v. Maryland Cas. Co., 170 Minn. 326, 212 N.W. 595, 15 L. R. A. (N. S.) 81; Cowan v. Sapp, 8 So. 214, 81 Ala. 525. (5) Equity will decree rescission and cancellation of a contract when an offeror under an honest mistake of fact as to a material matter makes an offer to an offeree who knows of such mistake, and especially is this so when the parties may be left in statu quo. 9 C. J. 1167, sec. 18; 3 Williston on Contracts, p. 2761, sec. 1557; 2 Beach on Modern Equity Jurisprudence, p. 626, sec. 555; 1 Black on Rescission & Cancellation (2 Ed.), p. 401, sec. 130; 3 Elliott on Contracts, 575, sec. 2417; Diaman v. Providence, Warren & Bristol Railroad Co., 5 R. I. 130; Werner v. Rawson, 89 Ga. 619, 15 S.E. 813; Frazier v. State Bank of Decatur, 101 Ark. 135, 141 S.W. 941; Conlan v. Sullivan, 110 Cal. 624, 42 P. 1081; Morgan v. Owens, 228 Ill. 598, 81 N.E. 1135; Coleman v. Ill. Life Ins. Co., 26 Ky. L. 900, 82 S.W. 616; Farquhar v. Farquhar, 194 Mass. 400, 80 N.E. 654. (6) The law in Missouri is in agreement with points 2-6 above. Wright v. McPike, 70 Mo. 175; McCormack v. Lynch, 69 Mo.App. 324; Lumber Co. v. Realty Co., 135 Mo.App. 708; Buckberg v. Washburn Crosby Co., 155 Mo.App. 701; Gottfried v. Bray, 208 Mo. 660; Jasper County Elec. Ry. Co. v. Curtis, 154 Mo. 10, 55 S.W. 222; Employers' Indemnity Corp. v. Garrett, 38 S.W.2d 1054, 327 Mo. 874.

C. O. French for respondent.

(1) The power of the court to exercise its equitable jurisdiction was properly invoked. State v. Trimble, 262 S.W. 357; 36 Cyc. 552; Egbert v. Heer D. G. Co., 102 Mo. 512, 155 S.W. 65; 36 Cyc., pp. 554, 565; Paris v. Haley, 61 Mo. 453; Johnson v. Schuchardt, 63 S.W.2d 17. (2) The proof of respondent's title was sufficient. 58 C. J. 1190, sec. 542; 22 C. J. 933, sec. 1248; Keyes v. Munroe, 266 Mo. 144, 180 S.W. 863; Hansen v. Neal, 215 Mo. 256, 114 S.W. 1073; Fitzmaurice v. Turney, 214 Mo. 610, 114 S.W. 504; Black v. Railroad Co., 110 Mo.App. 198, 85 S.W. 96; 22 C. J. 126, sec. 65; Erhart v. Ry. Co., 136 Mo.App. 617, 118 S.W. 657; Keith v. Bingham, 100 Mo. 300, 13 S.W. 683; Barry v. Otto, 56 Mo. 177. (3) The burden of proof was on the appellant to prove its affirmative defenses. 22 C. J. 74; 13 C. J. 758, sec. 933; Kline v. Hedges, 229 Mo. 126, 129 S.W. 575; Gibson v. Swofford, 122 Mo.App. 126, 77 S.W. 1007; Sweet v. Owens, 109 Mo. 1, 18 S.W. 928; Parker v. Vanhoozer, 142 Mo. 621, 44 S.W. 728; Meredith v. Holmes, 105 Mo.App. 343, 80 S.W. 61; Kilpatrick v. Wiley, 197 Mo. 172, 95 S.W. 213; Psinakas v. Magas, 161 Mo.App. 19, 142 S.W. 1086. (4) The evidence shows there was no mistake in the offer. 40 C. J. 1227; Kowalke v. Milwaukee Elec. Ry. & Light Co., 103 Wis. 472, 79 N.W. 762. (5) The finding of the chancellor will be deferred to by the appellate court. New England Loan & Trust Co. v. Browne, 177 Mo. 412, 76 S.W. 954; Huffman v. Huffman, 217 Mo. 182, 117 S.W. 1; Jones v. Thomas, 218 Mo. 540, 117 S.W. 1187; Walker v. Dobbins, 152 Mo.App. 270, 133 S.W. 385. (6) If the contract as made is complete, fair and untainted by fraud or other vice, specific performance goes as a matter of right. (a) Analysis of authorities cited by appellant. (b) Authorities cited by respondent. Rombauer v. Compton Heights Christian Church, 40 S.W.2d 554; Bradley v. Heyward, 164 F. 107; Borden v. Ry. Co., 113 N.C. 570, 18 S.E. 392; Bibber v. Carville, 101 Me. 59, 63 A. 303; Steinmeyer v. Schroeppel, 226 Ill. 9, 8 N.E. 564; Currey v. Greffett, 115 Mo.App. 364, 90 S.W. 1166; Kirkpatrick v. Pease, 202 Mo. 493, 101 S.W. 657; Kilpatrick v. Wiley, 197 Mo. 123, 95 S.W. 213; Hargis v. Smith, 178 S.W. 72; Berberet v. Myers, 240 Mo. 117, 144 S.W. 824; Evans v. Evans, 196 Mo. 23, 93 S.W. 969; Lemp Hunting & Fishing Club v. Hackman, 172 Mo.App. 549, 156 S.W. 791; Kirby v. Balke, 306 Mo. 109, 266 S.W. 704; Edwards v. Watson, 258 Mo. 646, 167 S.W. 1119; Miller v. Mo. Fire Brick Co., 139 Mo.App. 25, 119 S.W. 976; Benn v. Pritchett, 163 Mo. 560, 63 S.W. 1103. (7) Unilateral mistake not induced by or known to the other party, is not ground for cancellation of a contract. Moffett-Hodgkins & Clark v. Rochester, 91 F. 28, 178 U.S. 373; 13 C. J. 611, sec. 656, p. 373, sec. 255, p. 612, sec. 658; Holmes v. Fresh, 9 Mo. 201; Harrison v. Towne, 17 Mo. 237; McDonnell v. DeSoto Sav. & Bldg. Assn., 175 Mo. 250, 75 S.W. 438; Robinson v. Siple, 129 Mo. 208, 31 S.W. 788; Quigley v. Bartlett, 260 S.W. 494; Maupin v. Mo. State Life Ins. Co., 213 S.W. 398.

Hyde, C. Ferguson and Sturgis, CC., concur.

OPINION

HYDE

This case, coming recently to the writer, is an action in equity for specific performance. To establish the contract sought to be enforced, plaintiff relied upon a letter from defendant and his acceptance of the offer therein, by telegram. Defendant's defense was that, by mistake, the description of the land in the letter was incomplete, and that part of the land intended to be covered by the offer was not described therein. Defendant also filed a cross bill seeking a decree of cancellation, declaring that no contract existed for the land described in plaintiff's petition. The court found that there was an offer and acceptance by the letter and telegram which constituted a valid and binding contract and decreed specific performance thereof, requiring defendant to pay to plaintiff the sum of $ 12,000 with interest at six per cent from the date of his telegram, upon execution and delivery of a deed from plaintiff conveying to defendant a perpetual easement for inundation of the tract of land described in the decree as containing 10.8 acres. Defendant has appealed from this decree.

Plaintiff owned 360 acres of land in Benton County described as the southeast quarter of the northwest quarter, and the south half of section 20, township 40, range 21. This farm was located on Turkey Creek, a stream running into the Osage River from the south, and will be referred to as the Turkey Creek farm. Plaintiff also owned two farms in township 40 of range 20 about six miles northeast of the Turkey Creek farm on the north bank of the Osage River. These two farms will be referred to as the Osage River farms. Plaintiff also had some interest in another farm on the north bank of the Osage River, the title of which was held in the name of a man named Owsley. This will be referred to as the Owsley farm. All of these farms were to some extent subject to overflow by reason of the defendant's project known as the Bagnell Dam creating the Lake of the Ozarks. Plaintiff also owned other land not on the lake, either individually or with others, amounting altogether to more than 4,000 acres. He was a lifelong resident of that section and had been in the business of buying and selling land for many years.

In 1929, it was established by surveys that the normal level of the lake when full would be 660 feet above sea level. It was also...