Gardner v. Armstrong

• Decision Date: 31 March 1862
• Parties: SAMUEL H. GARDNER, Respondent, v. DAVID H. ARMSTRONG, Appellant.
• Court: Missouri Supreme Court

31 Mo. 535

SAMUEL H. GARDNER, Respondent,

v.DAVID H. ARMSTRONG, Appellant.

Supreme Court of Missouri.

March Term, 1862.

1. In actions upon contract at law, the party in whom is vested the legal interest is the proper party to bring suit.

2. When the trustee in a deed of trust to secure a debt sells real estate, he is the proper party to sue for the purchase money, and the purchaser has nothing to do with the proper application of the price paid.

3. In a petition to recover the price of land sold, an averment, after setting forth the contract, that the plaintiff demanded payment, in accordance with defendant's bid, which payment defendant refused to make, is a sufficient statement of a breach of contract.

4. If a contract is set up in a petition which is good at common law, the defence that it is not in writing, as required by the statute of frauds, & c., must be pleaded by him who would avoid it, and if not so pleaded, it is waived.

5. The difference between the sum bid at an auction sale of land and that bid at a re-sale is a proper criterion of the damages sustained by the refusal of the purchaser to comply with his bid.

Appeal from St. Louis Circuit Court.

Gardner, as trustee under a deed of trust made by one Adela Douthett to secure the payment of certain notes therein mentioned, sued Armstrong to recover damages occasioned by the refusal of the latter to comply with his purchase, at auction, of the premises described in the deed.

The petition alleges that Adela Douthett made the deed of trust to plaintiff, &c. that said plaintiff sold the property at public vendue, for cash, and that defendant purchased at the price of $8,000; that plaintiff tendered defendant a deed, who refused to accept the deed and pay the price aforesaid; that plaintiff thereupon advertised and re-sold the land, at the sum of $4,500--and prayed judgment for $3,500, the difference between the prices bid at the two sales.

At the trial, plaintiff proved the notice of sale; the tender of the deed, and the defendant's refusal to receive the deed, on the ground of an alleged defect of title; the re-sale at $4,500. There was no evidence to show the value of the land.

Defendant offered no evidence, but asked the following instruction--“Upon all the evidence in this case, the plaintiff is not entitled to recover”--which the court refused, and defendant excepted. The court gave judgment for the $3,500, and interest.

Defendant moved for a new trial, on account of the refusal to grant said instruction, and that the damages were excessive. He also moved in arrest of judgment, for the reason that the petition did not state facts sufficient to constitute a cause of action.

Both motions being overruled, defendant appealed.

Krum & Harding, for appellants.

I. The petition does not state facts sufficient to constitute a cause of action. 1. The wrong done is not to the plaintiff, but to the parties whose debts are secured by the deed of trust, in which the plaintiff has no interest. The plaintiff is not a mortgagee, nor does it appear that he was authorized to receive the proceeds of sale. For whose benefit is the suit prosecuted? From the petition this can not be determined. Plaintiff is not trustee of an express trust. 2. No breach of contract is shown. 3. The case is within the statute of frauds. The petition states that the auctioneer made a memorandum, in writing, at the time of sale, but does not state that he signed it. No proof was offered on this point. The memorandum should contain a description of the property, the name of the seller, the name of the buyer, the price, and then be signed by the auctioneer. It must be so full and complete that parol proof will not be required to help it out. (7 Mo. 389; 2 Caines, 61, 66; 4 Maine, 9; Jackson v. Catlin, 2 Johns. 258.) 4. The deed was tendered seven days after sale, which was not within reasonable time. The deed should have been tendered within reasonable time. (Cleaves v. Foss, 4 Maine, 8.) 5. The plaintiff, electing to re-sell, took the risks of the price. 6. The damages were excessive; he was liable for nominal damages, if liable at all. (Sedg. on Dam. 190, 278.)

J. D. Coalter and A. Hamilton, for respondent.

I. The vendor of lands, on the failure of the purchaser to take the same, is entitled to recover the damages sustained; and the difference in price between the original and the re-sale, although not conclusive, affords a good criterion of damages, as in an action for not accepting goods. (Addison on Cont. 179; 2 Hill on Vend. 106; Sedg. on Vend. (13 Ed.) 200; Cleaves v. Foss, 4 Maine, 2; Adams v. Milligan, 7 Port. 63; 5 Id. 180; Lambkin v. Crawford, 8 Ala. 157; Mount v Brown, 33 Miss. 567; Laird v. Pim, 7 M. & W. 474; Mayne on Dam. 102; Sedg. on Dam. 196, 297; 2 Kent's Pl. 504.)

II. The want of a written contract, so as to bind the defendant under the statute of frauds, was a matter of defence to be set up by the defendant. (Gist v. Ewbank, 29 Mo. 249; Wildbahn v. Robidoux, 11 Mo. 660; Hook v. Turner, 22 Mo. 335; Wiley v. Robert, 27 Mo. 391; Cozine v. Graham, 2 Paige, 181.) An auctioneer is the agent of both parties. (23 Mo. 427.)

III. The plaintiff's right to recover results from his position as trustee. Whether the damages recovered are needed to satisfy the debts secured is nothing to the defendant. (Grinnell v. Schmidt, Sand. Sup. C. 707; Hill on Trustees, 386, 387 & notes; Treat v. Stanton, 14 Conn. 451; King v. Hill, 20 Ala. 133; Moore v. Bennett, 11 Ohio, 334; Harvey v. Dutcher, 15 Mo. 89; Miles v. Davis, 19 Mo. 408; Gibbons v. Gentry, 20 Mo. 468.)

DRYDEN, Judge, delivered the opinion of the court.

The errors complained of in this case are that the circuit court refused, first, to arrest the judgment; and second, to grant the defendant a new trial. The point raised by the motion in arrest of judgment is based upon the ground that “the petition does not state facts sufficient to constitute a cause of action.” It is urged in objection to the petition that, as the plaintiff has no interest in the trust debt, the injury complained of was not an injury to him, but to the trust creditors, and therefore that he does not show in himself a cause of action. The objection assumes what is far from being true, that the beneficial interest in a contract determines the question who is to sue for a breach of it. The law regards the person to whom a promise is made, and with whom it is to be performed, as the one having the legal interest in the contract; and, in actions ex contractu at common law, it is a fundamental rule of pleading that “the action must be brought in the name of the party in whom the legal interest in such contract is vested,” without reference to who has the beneficial interest in the same. (1 Chitty's Pl. p. 2 & 3.)

This rule, in its application to cases like the present, is not thought to be changed by our statute relating to parties to...