Girdner v. Alley
| Decision Date | 31 December 1923 |
| Docket Number | No. 14909.,14909. |
| Parties | GIRDNER v. ALLEY. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Daviess County; Arch 3. Davis, Judge.
"Not to be officially published."
Action by Robert R. Girdner against W. D. Alley, administrator of the estate of Charles B. Robinson, deceased. Judgment for plaintiff, and defendant appeals. Reversed.
Ben F. Kesterson and Hyde, Griffith & Blair, ail of Kansas City, for appellant.
John E. Powell, of Princeton, for respondent.
This is an action &.t law to recover back $5,000, paid on a rescinded contract for the purchase of 100 acres of land in Mercer county, Mo. After the suit was brought, defendant died, and the cause was revived in the name of his administrator. There was a verdict and judgment In favor of plaintiff in the sum of $5,000, and defendant has appealed.
The facts show that on March 29, 1920, deceased entered into a contract with plaintiff whereby deceased sold to plaintiff the land in question at the price and sum of $13,000. Deceased agreed to convey the same to plaintiff by warranty deed within 30 days after the date of the contract. The consideration was to be paid to the deceased in the following manner: $2,000 in cash on the signing of the contract; a note for $3,000 to be given by plaintiff to the deceased at that time, payable on or before one year after date with interest at 8 per cent. per annum; the assumption of an $8,000 note and deed of trust securing the same payable five years after the date of the contract with interest at 6¼ per cent, per annum and to be dated April 15, 1920. The $2,000 cash was paid deceased on the signing of the contract and the note in the sum of $3,000 executed. The $8,000 incumbrance was not upon the farm, and it was agreed that the deceased was to have 30 days within which to place the same upon the property. Shortly after signing the contract, plaintiff and his family moved upon the farm and cultivated it during the season of 1920 and raised thereon corn, oats, and hay. Between 600 and 800 bushels of corn were sold and the money received by plaintiff. Plaintiff traded a poultry house on the place for a hog, and said house was moved off; he also sold for cash some old timber from a house that had been torn down to the road overseer for the purpose of making a bridge. Plaintiff had 50 or 54 head of hogs which he fed corn that he had raised on the farm in addition to the corn he sold.
The deed was not tendered to plaintiff within the time specified by the contract. Plaintiff testified that while he never asked specifically for the deed, he requested deceased many times to comply with the contract. Finally, in August, plaintiff told the deceased that he had rescinded the contract. He remained on the place, however, until he brought this suit, about the first part of December, 1920. He moved from the place and demanded of defendant that he return to him his money shortly before bringing the suit. The evidence shows that plaintiff has never offered to place deceased or defendant in statu quo by tendering the money he received from the poultry house and lumber sold off the place or what was grown on the place or the proceeds thereof, or the rental value of the place during his occupancy of it. According to plaintiff's testimony, the reason given by deceased for his failure to comply with the contract was that deceased wanted to get an eastern loan and the commission was too high.
Shortly after the suit was filed, deceased tendered a warranty deed to plaintiff for the farm subject to a note and deed of...
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