Gottfried v. Bray
| Decision Date | 24 December 1907 |
| Citation | 106 S.W. 639,208 Mo. 652 |
| Parties | WILLIAM H. GOTTFRIED v. MARTHA BRAY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.
Reversed (with directions).
Barbour & McDavid and McCollum & Johnson for appellant.
(1) The right to have specific performance of a contract decreed is not a matter of right in either party, but a matter of discretion with the court. 2 Story, Eq., sec. 742; Pomeroy v. Fullerton, 131 Mo. 581; Veth v Gierth, 92 Mo. 104. A court will not decree specific performance of contract unless the contract is clearly established. Veth v. Gierth, 92 Mo. 97; Paris v Haley, 61 Mo. 453; Taylor v. Williams, 45 Mo 80. It is a well-established rule that in suits for specific performance of contracts, even when written, the defendant may show by parol that the writing does not express the real agreement. 2 Pomeroy's Equity Jur. (2 Ed.), 860; Railroad v. Curtis, 154 Mo. 10. (2) The learned trial court evidently tried and rendered judgment in this case on the theory that the written contract offered in evidence was conclusive evidence of the agreement between plaintiff and defendant, notwithstanding the fact that this contract was assailed by defendant as having been fraudulently obtained, and not voicing the agreement for the sale of the lot had between herself and plaintiff. The controlling question in this case is whether or not defendant was tricked into signing this contract as she testifies she was, or whether it spoke the agreement had between the parties relative to the sale of the lot, and in determining this fact in the light of all the testimony, the contract offered in evidence in itself should not be weighed in the scale as against defendant, but the question should first be determined from the evidence as to whether or not this was a contract between the parties. (3) The preponderance of the evidence in this action was clearly in favor of defendant.
Tatlow & Mitchell and E. D. Merritt for respondent.
In this case the issue was sharp and direct in the trial court as to whether plaintiff did, or did not, read all of the contract of sale to defendant at the time of its execution, and there is sufficient evidence to sustain either contention. In such a case the appellate court will not interfere with the findings of the trial court. Strine v. Williams, 159 Mo. 582; Chance v. Jennings, 159 Mo. 560; Arn v. Arn, 81 Mo.App. 133; Culver v. Smith, 82 Mo.App. 390; Carter v. Dilley, 167 Mo. 571; Benne v. Schnecko, 109 Mo. 250; Clark v. Bank, 57 Mo.App. 277. Defendant in her brief assigns no error committed by the trial court in the admission of evidence. No declarations of law were asked or given. Her four assignments of error all resolve themselves into this, that the court should have found for defendant instead of for plaintiff. Under the authorities cited the findings of the trial court will not be disturbed.
The plaintiff, William H. Gottfried, brought his suit in the Greene County Circuit Court against the defendant, Martha Bray, alleging that on the 29th day of June, 1903, defendant agreed in writing to sell to him certain real estate situated in the city of Springfield, which alleged agreement is as follows:
Plaintiff prayed specific performance of said alleged contract. Defendant's answer pleads as a defense to the action that she never agreed to the writing sued on, nor the terms thereof, although her name was appended thereto; that she and the plaintiff had been negotiating with reference to the sale of this piece of ground prior to the execution of the alleged contract, but that in all of their negotiations they had talked of and agreed upon $ 60 per front foot as the price of the property to be sold, with a depth of 220 feet; that the plaintiff had never complained of the price, but on the contrary agreed to the same, and also to the depth which said lot should have. The plaintiff came to her house in company with his wife and presented to the defendant what he termed a receipt for money, and represented it as such and nothing more; that she explained to plaintiff that she could not read the writing owing to defective eyesight, and stated that she would go and get her other glasses which would enable her to read it; that plaintiff reassured her and volunteered to read it himself; that she trusted him to read the writing as it really existed, which he pretended to do; that he did not read it as it is set forth in the contract sued on, but purposely omitted from such reading, and with intent to defraud this defendant and procure her signature to an instrument, to the terms of which she did not and does not agree, all that part of said alleged contract relating to the price per front foot, and to the depth of the lot.
Defendant further states as a defense to said action that she relied upon plaintiff's representation that he would read it correctly, and that it contained only a receipt for the $ 50 which he at that time was paying her, and signed the same, but that said writing did not contain the terms upon which the ground had been sold, but other and different terms, and that her signature was procured through fraud and misrepresentation. The circuit court decreed specific performance and defendant appeals.
I. That there was an agreement by defendant to sell plaintiff a portion of her residence lot fronting on Walnut street in the city of Springfield, there can be no doubt. Plaintiff insists that she agreed to sell and convey him the east fifty feet of said lot fronting on Walnut street and extending in depth 226 feet, for fifty dollars per front foot or $ 2,500 in the aggregate; whereas, defendant testifies and insists she only agreed to sell him fifty feet front with a depth of 220 feet for sixty dollars per front foot or $ 3,000 in the aggregate. On the part of the plaintiff the evidence consists of plaintiff's testimony and the written memorandum prepared at his instance and signed by defendant. The defendant on her part testified positively that she agreed to sell plaintiff the fifty feet, but that it was only to extend 220 feet in depth and that the price was sixty dollars per front foot or $ 3,000; that during the negotiations she and her niece, Mrs. Collins, went with plaintiff over the lot and showed him that the 220 feet extended to the barn lot fence and that she would not sell more that that amount, as more would ruin her driveway; that previous to plaintiff's coming to her residence she and her niece had measured the lot and found that 220 feet deep would take the lot to her barn fence, and she cut a notch in the fence to show him where it would come to, and when plaintiff came, she and Mrs. Collins went with him and showed him where it would come and plaintiff said that it was as deep as he wanted it, and she told him then and there that was all she would sell under any circumstances or consideration, because if she sold more she would have to drive between her barn lot and his lot and that would ruin her driveway. On this point Mrs. Collins fully corroborated defendant. She testified the lot was to be fifty feet in width and 220 feet in depth. She had assisted her aunt, the defendant, in measuring the lot the day before plaintiff came to look at it. Defendant wanted to know how near the fifty feet would come to her house. On this branch of the testimony, plaintiff, on cross-examination, testified that when he went to the lot defendant said the additional six feet would take her chicken coop and she did not want to lose that, and he replied, "Well, the contract was for a lot 226 feet deep;" that she said she had stepped it off and was afraid it would take her chicken coop, and he, plaintiff, kind of laughed it off and said, "Well, that is not of much consequence," and said no more about it. Plaintiff then left and went to his attorney and had him prepare the memorandum of the trade set out in plaintiff's petition.
The real contention on this appeal hinges upon the execution of the memorandum of sale by defendant, for while in a court of law the written document is presumed to contain the final agreement of the parties and that all prior verbal negotiations are merged therein, it is nevertheless a well-established rule that when a plaintiff comes into court of equity for a specific performance of the agreement, even when written, the defendant may by parol evidence show that through the mistake of both or either of the parties, the writing does not express the real agreement, or that the agreement itself was entered into through a mistake as to its subject-matter or as to its terms. "In short," says Pomeroy in 2 Pomeroy, Eq. Jur. (2 Ed.), sec. 860, "a court of equity will not grant its...
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