Frisbie v. Scott
| Decision Date | 04 March 1918 |
| Citation | 201 S.W. 561,199 Mo.App. 131 |
| Parties | ALBIN C. FRISBIE, Appellant, v. F. E. SCOTT and LEON H. SCHWALD, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. W. O. Thomas, Judge.
AFFIRMED.
Judgment affirmed.
Ed. E Aleshire for appellant.
Robert O. McLin for respondents.
Plaintiff entered into a written contract with the defendant Scott whereby each agreed "to convey or cause to be conveyed by good and sufficient warranty deed" to the other or to his order, different lands variously located, all of which were specified in Schedules A and B attached to said contract, the former containing lands in Colorado belonging to plaintiff, and the latter naming lands in Kansas City, in Ripley county, Missouri, and in Texas, which the defendant was to convey or cause to be conveyed to plaintiff in exchange for his lands. The Texas lands consisted of two specified sections in Brewster county; and it is with reference to these two sections, or the failure of title thereto, that this lawsuit is concerned. Each party to the contract was to furnish to the other "full and complete abstracts of title, with the necessary certificates" etc. This was done and plaintiff's attorney examined the title to the lands he was expecting to get. The lands defendant was to convey or cause to be conveyed to plaintiff were not owned by him but stood in the name of various parties, and plaintiff knew of this fact.
By certain modifications of the contract, not necessary to explain, it was agreed that plaintiff should deliver his deed (with the name of the grantee omitted) to defendant Scott so that he might take it to Iowa and there close a deal he had with a man named Muntz by inserting Muntz's name as grantee in said deed; and defendant's deeds to the lands plaintiff was to get in exchange for his were deposited in escrow with the Missouri Savings Bank to be delivered to plaintiff if the Iowa deal went through. Among these deeds so deposited was one from G. O. Stansbury to the two sections of Texas land. The Iowa deal went through and plaintiff's deed to the Colorado land was delivered by defendant to Muntz and the Bank delivered to plaintiff the deeds held in escrow by it. The plaintiff acknowledged, in writing, and also in the testimony, that he accepted said deeds in performance of the exchange contract, among them being the Stansbury deed as aforesaid. This deed contained the usual warranty clause whereby Stansbury agreed to "warrant and forever defend" the title to the Texas land to plaintiff "against every person lawfully claiming or to claim" said land or any part thereof.
The abstract to the Texas land showed in the chain of title a deed dated January 30, 1913, from Henry W. Rokker to S. A Jones and next a deed from Jones to Stansbury. And the abstract showed an apparently good title in Stansbury, so that a deed from him to plaintiff, when delivered, would seem to put the title in him.
Very shortly after the exchange, however, it was discovered that the deed from Rokker to Jones was a forgery and was so declared to be by a decree of the proper Texas court. Since the deed purporting to be from Rokker (the owner) to Jones was a forgery, the deed from Jones to Stansbury conveyed no title and hence Stansbury's deed to plaintiff was worthless and conveyed no title. Therefore, under the exchange contract plaintiff got no title to the Texas lands and lost the value thereof.
He brought this suit against Scott and the defendant, Schwald, who was in fact interested with Scott in said exchange contract though not signing it. The petition was originally in two counts, the first setting up the exchange contract and the warranty in the Stansbury deed, and apparently attempts to hold defendants on the covenant of warranty in said deed on the theory that, by virtue of the contract, Stansbury's deed was their deed and his covenant their covenant. In the second count no mention was made of the covenant in the deed but the cause of action was based alone upon the violation of the contract.
At the close of all the evidence plaintiff dismissed the second count. The court overruled defendants' demurrer and the case went to the jury, the plaintiff obtaining a verdict for $ 2560 and interest from date of suit. This the trial court, on motion for new trial, set aside without giving his reason for so doing. Thereupon plaintiff appealed.
If any one of the various grounds stated in the motion for new trial are sufficient, this would justify us in affirming the judgment. Among these grounds is one that the "verdict is against the weight of the evidence," and since we do not know what ground the court acted upon this may have been the one. And if there is any dispute in the evidence as to a material element in the case, this would require us to sustain the trial court's action. There is a very decided conflict in the evidence affecting the measure of damages which plaintiff claims to be the correct measure to be upheld. Hence we might very well affirm the judgment on this point alone.
However it is asserted by plaintiff in the brief and, in a way, though not as specifically as might be desired, admitted by defendants that the real...
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