Glass v. Rowe

• Decision Date: 10 February 1891
• Citation: 103 Mo. 513,15 S.W. 334
• Parties: GLASS et al. v. ROWE.
• Court: Missouri Supreme Court

15 S.W. 334

103 Mo. 513

GLASS et al. v. ROWE.

Supreme Court of Missouri, Division No. 2.

February 10, 1891.

SPECIFIC PERFORMANCE — AGENCY.

Defendant, a non-resident, wrote on March 1st, authorizing his agent to sell a certain lot for a price named, saying: "This bargain good for twenty days. I do not care to be tied up with my property for longer time." This letter was shown to the proposed purchasers, one of whom was a lawyer, who, on March 10th, took from the agent a contract in defendant's name by which the papers were to be passed and the money paid within 30 days from that date, and providing that, if not carried out by the purchasers, the amount paid as earnest money should be forfeited; and that, if defendant failed to carry out the contract, he should refund the earnest money, but that, if it were possible for him to make a good title, it must be done. Held, that the only authority granted the agent was to make an actual sale within 20 days, and that, as the contract in effect granted an option for 30 days at a certain price, in consideration of the sum paid as earnest money, while the vendor was bound in any event to make a title, there was such want of mutuality of obligation, as well as of authority on the part of the agent, that equity would not decree specific performance.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

This is an action for the specific performance of an alleged contract, and was commenced on the 16th day of May, 1887, in the circuit court of Jackson. Mo. Prior to and on the 1st day of March, 1886, the plaintiffs were residents of Kansas City, Mo., and defendant was a resident of Kalamazoo, Mich. Defendant was the owner of lot 69 in Swope's addition to said city of Kansas. J. T. Elliott was a real-estate agent in Kansas City. On the 27th of February, 1886, Elliott sent Rowe, the defendant below and appellant here, the following telegram from Kansas Ciy: "February 27th, 1886. Can get $150.00 per foot for Grand-Ave. lot. Shall I sell? If so, name terms. J. T. ELLIOTT." To this telegram Rowe replied by letter, stating, in substance, that he would not accept the offer; that he had been offered more than that several years before. On March 1, 1886. Elliott sent this dispatch to appellant: "Kansas City, Mo., March 1, 1886. Letter received. Wire me your very best figures and terms to sell at. J. T. ELLIOTT." To this second telegram Rowe wrote a reply, as follows: "Kalamazoo, Michigan, March 1st, 1886. J. T. Elliott — Dear Sir: Your telegram of today received. In answer will say that on December 8th I refused $250 per foot, — $12,000. Afterwards was asked if 275 would buy it,' or words to that effect. I then offered the property at $300 per foot until February 1st, cash down, and heard nothing more from the parties. Will now sell at $350 per foot. All funds payable to my order through bank or express office. A regular commission of two and a half per cent. to you after sale is made and closed; reserving the right that, if sold by any other parties, you receive no commission. This bargain good for twenty days. I do not care to be tied up with my property for longer time. Terms, half cash: balance one and two years, at eight per cent. T. H. ROWE." In reply to this letter, Elliott wrote as follows: "Kansas City, Mo., March 8, 1886. T. H. Rowe, Esq., Michigan — Dear Sir: I have been working hard on our man for the Grand-Avenue property, and have got him up to $300 per foot; half cash, balance time. Will this buy the property? Please let me know by return mail, and greatly oblige, yours, respectfully, J. T. ELLIOTT." Rowe did not reply to this letter. On March 10th Elliott sent to Rowe a telegram as follows: "Kansas City, March 10th, 1886. Sold your Grand-Avenue lot. Will write full particulars. J. T. ELLIOTT." And on the same day wrote a letter of which the following is a copy: "Kansas City, March 10, 1886. T. H. Rowe, Esq., Kalamazoo, Michigan — Dear Sir: I have succeeded in selling your Grand-Avenue lot at the price named in your letter, — $350 per front foot; one-half cash; balance one and two years, at eight per cent. interest. Please send your abstract at once, so I can have it brought down to date and examined; and when we get ready for the deed you can send it to the bank here, or come down yourself. Please send the abstract by return mail, and greatly oblige. I think you are the luckiest man I ever saw. Everything you buy doubles up and melts into money. I think this is the best sale that has been made in the city for some time. Ground opposite your lot can be had for $250 per foot. I could not have sold your lot at the price mentioned had it not been that the party's brother has purchased the adjoining lot, and they want to put up a building together. There has been quite a boom on Main and Walnut Street property for the past few weeks; and from the present indications it looks as though things were going to be pretty lively in Kansas City this season. Say, I think you ought to pay me a handsome commission on this deal, because I did not sell your property when you offered it at $8,000. What do you think about it? The party I sold your lot to is a wealthy business man, doing business on Delaware street. Let me hear by return mail, and don't forget to send the abstract. Very truly, J. T. ELLIOTT." At this time Rowe was quite out of health, and unable to attend to business, and turned the matter over to his attorney, W. G. Howard, of Kalamazoo, Mich., together with the correspondence thus far had, and instructed Howard to carry out the terms of his (Rowe's) letter of March 1st. Howard thereupon wrote to Elliott, March 13, 1886, as follows: "Kalamazoo, Mich., March 13, 1886. J. T. Elliott & Co., 605 Delaware St., Kansas City, Mo. — Dear Sir: Mr. T. H. Rowe of this place has put into my hands, to look after, the matter of the sale of his Kansas City lot, about which he and you have been corresponding, and has handed me the correspondence. He is out of health, and cannot look after it. I herewith inclose abstract, as requested in your letter, made by McCullum & Edwards, to whom Mr. Rowe said you referred him at time it was made. Understand the title is the same now as when abstract was made, except there is a special assessment for grading, not paid. When you look it up, and are satisfied, let me know. Also send me name of grantee, and I will have the deed executed; and Mr. Rowe wants me to go to Kansas City and assist in closing the matter up. He tells me he is to pay you two and one-half per cent. for making sale, and we expect, of course, that you act for us in looking after our interests in the matter. Mr. Rowe understands that he is not to pay any taxes or assessments already made, but not yet due. Do you so understand it? Let me know when you are ready. I do not want to be detained there. Does your state require notarial seal to acknowledgment of deed, or simply county clerk's certificate that the person who acknowledges is a notary? You might send deed filled out to me. Mr. Rowe's wife is named Florence V. Rowe. Please exempt from warranty if you do send taxes and assessments not yet due, if that is the custom in selling. Yours, respectfully, W. G. HOWARD." To which Mr. Elliott replied as follows: "Kansas City, Mo., March 17, 1886. W. G. Howard, Esq., Kalamazoo, Michigan — Dear Sir: Yours of March 13th, inclosing abstract to the Grand-Avenue property received, and contents noted; and in reply say that Mr. Rowe, under the contract, in the sale of his lot is to pay taxes, special and general, which were a lien at the time sale was made. I will send you a deed filled out in form required by our law in a few days. The attorney of the purchaser is examining the abstract, and, as soon as he gets through, will send you the deed. The notary's seal should be affixed, as the law requires this in this state; also notary should say when his commission expires. Tell Mr. Rowe that his interest will be looked after just the same as if he was here himself; and I will not allow him to pay out one cent more than is customary on sale of property. Of course you will be here to take care of his interest when we get ready to close the matter. Just as soon as they get through with the abstract I will send you the deed properly executed, and tell you when to come, Will you be kind enough to ask Mr. Rowe if there is any incumbrance on the place, and how much? Will write again in a few days. Yours, respectfully, J. T. ELLIOTT." On March 25, 1886, Elliott wrote to Mr. Rowe the following letter: "Kansas City, Mo., March 25, '86. T. H. Rowe, Kalamazoo, Mich. — Dear Sir: The attorney who is examining your abstract has been overloaded with work, and is not quite through with the title. He says there are several mistakes in the abstract that will have to be fixed up; but he thinks it can be done without much trouble. I will write just as soon as they get through with the abstract, and send you the deed for your signature, &c. Very respectfully, J. T. ELLIOTT." On the 7th of April, 1886, Howard, under instructions from Rowe, sent Elliott the following telegram: "Kalamazoo, Mich., April 7th, 1886. J. T. Elliott, 605 Delaware street, Kansas City, Mo.: You not having complied with Mr. Rowe's proposition of sale of Grand-Ave. lot, he directs me to withdraw the same. Please return abstract at once. W. G. HOWARD." To which Elliott replied, by telegram: "Kansas City, Mo., April 8, 1886. To W. G. Howard: The purchasers have complied with their contract, which is of record. The delay is ours. The abstract does not show good title in Rowe. Title will probably be perfected by Monday next. Shall we send deed, or will you come on? J. T. ELLIOTT." On the same day Elliott wrote Howard as follows "Kansas City, Mo., April 8, 1886. W. G. Howard, Attorney at Law, Kalamazoo, Mich. — Dear Sir: I telegraphed you this A. M., explaining the causes of the delay in closing the lot sale. The parties purchasing...