Green v. Ditsch

• Decision Date: 23 February 1898
• Citation: 44 S.W. 799,143 Mo. 1
• Parties: GREEN v. DITSCH.
• Court: Missouri Supreme Court

44 S.W. 799

143 Mo. 1

GREEN v. DITSCH.

Supreme Court of Missouri, Division No. 1.

February 23, 1898.

APPEAL — HARMLESS ERROR — WITNESSES — COMPETENCY — STATUTE OF FRAUDS — PART PERFORMANCE — IMPLIED COVENANTS.

1. The admission of incompetent evidence in a suit in equity is not reversible error, where its rejection will not change the conclusion of fact.

2. An agent of plaintiff, who had made the sale in controversy to defendant's ancestor, cannot testify to the transaction, it being within Rev. St. 1889, § 8918.

3. By a verbal contract, property was sold for $3,000, on condition that the title should be marketable, and that the vendor should build an addition to the house costing $500, to be added to the price. The $3,000 was paid at once, and the vendor gave a note therefor, secured by a trust deed on the property. The title was later found to be marketable. The addition was completed six months later, as agreed, and paid for by the vendor. Held, that the payment of the $3,000 and the giving of the trust deed were in pursuance of the contract, and hence there was sufficient part performance to estop both parties from invoking the statute of frauds.

4. While there is an implied covenant, in an executory contract for the sale of real estate, that the grantor has a marketable title, yet there is no implied covenant that the title will be such as the grantee may be willing to accept, or as his attorney may pronounce marketable.

Appeal from circuit court, Jackson county; E. L. Scarritt, Judge.

Bill in equity by John J. Green against Henry Ditsch. From a decree for plaintiff, defendant appeals. Affirmed.

This is a suit in equity for the specific performance of an alleged contract for the sale of a lot in Kansas City, on which there was at the time a dwelling house. The petition charges that on the 15th of November, 1890, plaintiff was the owner of the lot, describing it, and on said day a contract between him and P. W. Ditsch was entered into, "by the terms of which the plaintiff agreed to sell, and the said P. W. Ditsch agreed to buy, said property, at and for the price and sum of three thousand dollars; and that it was further agreed that an addition to the house then standing on said premises should be constructed by the plaintiff, at the price not exceeding five hundred dollars, which amount said Ditsch should repay to the said Green. It was further agreed that the said contract should be consummated when said addition to said house should be completed; that plaintiff proceeded at once to the erection of said addition, and completed same at the cost of five hundred dollars; and it was agreed between the parties that as a means to pay plaintiff for said lot before the consummation of said contract and the erection of said addition, that the said Ditsch should pay to the plaintiff the said sum of three thousand dollars, and the plaintiff should execute to said Ditsch a note for said amount, secured by deed of trust on said property; that said note and deed of trust were accordingly executed, and plaintiff has completed said addition, and has complied with all the terms and conditions of said contract on his part; that, pending the said performance of said contract, the said P. W. Ditsch departed this life, leaving the said defendant as his heir, and the said defendant thereupon assumed the said contract, and has reaped, and is now enjoying, the benefits thereof, having entered into the possession of said property under said contract, and accepted the additions so erected by plaintiff as aforesaid; but that the said defendant failed and refuses to carry out and perform his part of said contract, and, on the contrary thereof, undertook to cause a sale to be made under the terms of the deed of trust aforesaid, on the 28th day of December, 1891, and claims to have acquired the title to said property under and by virtue of said trustee's sale. But the plaintiff alleges that it was a part of the contract hereinbefore mentioned that said deed of trust should not be thus foreclosed, but should simply be held to secure the performance by the plaintiff of his part of the contract for the conveyance of said lot and the erection of said addition for the aggregate sum of thirty-five hundred dollars. Plaintiff has at all times been ready and willing to comply with his part of said contract, and he prays the court to require the defendant to specifically perform his part thereof, to set aside trustee's sale, to cancel and annul the plaintiff's said note and the deed of trust given to secure the same, to require the defendant to pay the balance of the purchase money, to wit, the sum of five hundred dollars, with interest from the first day of May, 1891, and for such other and further relief as to the court may seem meet and proper." Defendant, by answer, admitted the execution and delivery of the note and deed of trust, and the sale of the land thereunder as charged, but denied every other allegation of the petition. He charges affirmatively that the alleged contract, if one should be found to have been made, was not in writing, nor was there any memorandum thereof in writing signed by either of the parties charged therewith, and such contract cannot be enforced by reason of the statute of frauds. Upon a trial in the circuit court, a decree was rendered in favor of plaintiff, and defendant appealed. The facts will sufficiently appear in the opinion.

L. H. Waters. for appellant. Karnes, Holmes & Krauthoff, for respondent.

MACFARLANE, P. J. (after stating the facts).

It appears from the evidence, to our entire satisfaction, that a verbal agreement was entered into in November, 1890, between plaintiff and P. W. Ditsch, the ancestor of defendant, by which the former agreed to sell to the latter the land in question for the sum of $3,000 cash. It is true, the proof of the contract in part was made by a witness who was the agent of plaintiff, and who dealt directly with P. W. Ditsch, who had died before the trial. Claim was made on the trial, and is renewed here, that the witness was incompetent, under the statute, to testify, on account of the death of Ditsch, who was a party to the contract. In equity cases, incompetent evidence admitted on the trial can be disregarded by the appellate court; so, speaking generally, the admission of such evidence is not reversible error. This is so when, rejecting the incompetent evidence, the conclusion of fact will be unchanged. The witness whose incompetency is charged testified to the agreement for the sale which he said was made between himself, as agent of plaintiff, and Mr. Ditsch. Under the construction we have given to the statute, he was not a competent witness to the transaction. Banking House v. Rood, 132 Mo. 258, 33 S. W. 816. But a witness called by defendant confirmed this...