Gotcher v. Haefner

• Citation: 107 Mo. 270,17 S.W. 967
• Parties: GOTCHER et al. v. HAEFNER et al.
• Decision Date: 02 December 1891
• Court: United States State Supreme Court of Missouri

17 S.W. 967

107 Mo. 270

GOTCHER et al. v. HAEFNER et al.

Supreme Court of Missouri, Division No. 2.

December 2, 1891.

EQUITY — RESCISSION AND CANCELLATION OF CONTRACTS — ADEQUATE REMEDY AT LAW.

1. A written contract of plaintiffs, husband and wife, with real-estate agents, whereby the

latter were to sell certain lands owned by the wife for not less than $10,000, recited that the agents were to receive a commission of $300, and all over $10,000 that the land brought. The agents sold the land for $13,500, the deed executed by the plaintiffs reciting a consideration of $15,000. Five thousand dollars was paid in cash; and notes given for the balance, secured by a deed of trust. The agents, after deducting $300 from the cash payment, turned over the balance to plaintiffs, and the notes, except two, of $2,000 and $1,500, respectively, which, at their request, the husband indorsed in his wife's name, "without recourse." About six weeks after the sale a mistake in the description in the deed was corrected at the request of the purchasers. Plaintiffs, claiming that they were deceived by the agents, that the latter did not read the agreement to them, and that they did not know that it provided for a greater compensation than $300, and that they did not discover that the land brought more than $10,000 until four months after the sale, as they had never before read the deed, although they had it, the deed of trust, and two of the notes in their possession, brought a suit in equity to have the two notes, which had been assigned by the agents, declared the separate property of the wife, and to compel the assignees to turn them over, or to have judgment against the agents for their total amount. There was evidence that plaintiffs had previously contracted with other agents to sell the land for $9,500, the latter to receive all over that amount that the land brought as their compensation. Held, that all the circumstances before and after the agreement and sale fully sustained a finding that they were not deceived.

2. In the absence of any allegation or proof of the insolvency of the agents, plaintiffs had no standing in a court of equity, since there was a complete remedy at law, by action by the wife against the agents, if they had wrongfully sold the notes and converted the proceeds, — her statutory separate property; or, if the indorsement by the husband of the name of the wife was without her authority, and the purchaser of the notes had notice thereof, she could maintain replevin against him to recover possession of the notes.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Action by Elizabeth Gotcher and Thomas Gotcher against Joseph Haefner and others. From a judgment for defendants, rendered on trial by the court without a jury, plaintiffs appeal. Affirmed.

D. C. Allen and H. N. Ess, for appellants. L. H. Waters, for respondents.

THOMAS, J.

This record shows that in January, 1887, Elizabeth Gotcher, the wife of her co-plaintiff, Thomas Gotcher, owned 95 acres of land in the Missouri bottom in Clay county; that she and her husband employed Jackson & Bartels, real estate agents, doing business in Kansas City, to sell this land for them for a sum not less than $10,000, and for as much more as they could get, Jackson & Bartels to get $300 only as commissions for making the sale, as claimed by plaintiffs; that a written agreement was drawn up by defendant Jackson, which was to evidence the contract between plaintiffs and Jackson & Bartels, which plaintiffs signed. This written contract provided that Jackson and Bartels were to get $300, and, in addition thereto, all over $10,000 the land was sold for, as their commissions for effecting the sale. Plaintiffs claim that defendant Jackson obtained their signatures to this contract by fraudulently reading it to them, and omitting to read that stipulation in it in regard to Jackson & Bartels being entitled to all the land sold for over $10,000, and by fraudulently stating that the contract as written provided for the payment of $300 only as commissions. This contract was entered into the 10th day of January, 1887. On the 14th of March following defendants Jackson & Bartels sold the land to defendants Haefner & Houser for $13,500, and a deed was executed by plaintiffs to them, which, at their request, recited a consideration of $15,000. This deed was delivered to the purchasers, who paid to Jackson & Bartels $5,000 in cash, and gave their notes for $8,500, in...