Greening v. Steele

• Decision Date: 28 May 1894
• Citation: Greening v. Steele, 26 S.W. 971, 122 Mo. 287 (Mo. 1894)
• Parties: Greening v. Steele, Plaintiff in Error
• Court: Missouri Supreme Court

26 S.W. 971

122 Mo. 287

Greening v. Steele, Plaintiff in Error

Supreme Court of Missouri, First Division

May 28, 1894

Error to Daviess Circuit Court. -- Hon. C. H. S. Goodman, Judge.

Reversed and remanded.

J. F Harwood, W. D. Hamilton and W. W. Arnold, for plaintiff in error.

(1) The contract signed by both Steele and Greening is full and complete, and no additional stipulations could be engrafted upon it without Steele's consent. Pearson v Carson, 69 Mo. 550; Robinson v. Jarvis, 25 Mo.App. 451. (2) Where a contract is plain and complete in itself, and is not procured by fraud or deceit, the person making it can not be heard to say that he did not enter into such contract, but a different one. Hais v. Wamsley, 32 Mo.App. 115. (3) The written contract set forth in the defendant's answer, not being denied under oath by plaintiff, is confessed to be the true contract, and must be enforced according to its terms. R. S., sec. 2186; Robinson v. Jarvis, 25 Mo.App. 421; Rothschild v. Frensdorf, 21 Mo.App. 318. (4) The conditions of the escrow were performed according to the memorandum. After the first delivery of a deed in escrow it can only be revoked by the grantor for default in the performance of the condition. Tiedeman on Real Property, page 651, sec. 815.

Hicklin & Yates for defendant in error.

(1) The first error complained of by plaintiff in error is surely without foundation. Even if this were an action to restrain Steele from selling the land, the petition would be good, as Greening is not compelled to stand by and see his land sold and then sue for damages, though Steele might be amply able to respond. In such a case Greening would have no adequate remedy at law and his petition here would show it. But this is not an action to restrain. So we deem a recitation of authorities as wholly unnecessary to show that it is the plaintiff in error that has erred and not the court below. (2) The next position assumed is likewise not well taken, for it is not sought to bind Steele by the writing that it is alleged that McCammon signed, but it is relied on as testimony tending to show that Greening's deed was to remain in escrow till he could go to Kansas and see Steele's land; for aught that appears on the face of the contract signed thirty-first day of January, 1889, he had such right. (3) The third and last error complained of is as to the lower court's finding of the facts and involves a review of the evidence.

OPINION

Macfarlane, J.

This is a suit in equity the purpose of which is to cancel a certain deed made by plaintiff to defendant to eighty acres of land in Daviess county. The petition charges, in substance, that after negotiations for an exchange of the eighty acres of land owned by plaintiff, for two hundred and forty acres of land owned by defendant, situate in the state of Kansas, an agreement was reached by which the exchange could be effected, provided the Kansas land answered the description, in quality and improvements thereon, as represented by defendant, and to determine which plaintiff was to examine the land himself; that, pursuant to this agreement, deeds were made and placed in the hands of McCammon & Sprague, real estate agents, to be held until such examinations should be made, and thereafter delivered to the parties, should the land be found as represented; that plaintiff did examine the land and found that its quality and improvements were not at all as represented, and he demanded of McCammon & Sprague the return to him of the deed, which they refused, but on the contrary, wrongfully and without authority delivered it to defendant; that defendant had placed the deed on record and now claimed the land thereunder.

Defendant answered that the contract for the exchange of the land was agreed upon and concluded July 31, 1889, and as evidence of the agreement the following contract was written, signed and delivered by the parties:

"This article of agreement, entered into this thirty-first day of January, 1889, by and between Thomas S. Greening and H. W. Steele, both of Daviess county, State of Missouri, witnesseth, whereas H. W. Steele and T. S. Greening have this day made an exchange of certain tracts of lands as shown by two general warranty deeds, and whereas H. W. Steele agrees to pay T. S. Greening or his assigns the sum of $ 200 on or before the first day of March, 1889, as a difference in said exchange -- the consideration of this agreement being such that each party to this transaction is to furnish a complete abstract of said properties free and clear of all incumbrance, except as stated in the abstract and deeds -- and we each and severally agree to forfeit the sum of one hundred dollars to the other, should either fail to comply with the above agreement. Witness our hands this thirty-first day of January, 1889.

"T. S. Greening. [seal]

"H. W. Steele. [seal]"

That on the same day the two deeds making the exchange were also signed, sealed and delivered. That thereupon said contract and deeds were placed in the hands of McCammon & Sprague, to be held until defendant should pay the $ 200 provided by the contract to be paid by him, and that when said sum of money should be paid the deed to the land should be delivered to him. That said sum of money was paid and all conditions of the contract were complied with and said deed was properly returned to him.

The evidence showed that McCammon & Sprague, as real estate agents, had in their hands for sale or exchange, the lands of both parties. That negotiations for the exchange had been pending for some time, different propositions having been made and refused or withdrawn. On January 31, 1889, the parties got together and an agreement was reached, when the contract under which defendant claims was prepared and signed. On the same day deeds were also executed and acknowledged. Whether this contract and the deeds were then delivered is a disputed question. That they were then placed in the hands of McCammon & Sprague, and that the agreement for the exchange was concluded is without dispute. The question turned upon what the conditions were upon which the deeds were to be turned over to the respective grantees. Upon the deposit by defendant, for the use of plaintiff, of the $ 200 required to be paid, McCammon & Sprague delivered to defendant the deed conveying to him the eighty acres of land, and he had it recorded. That was done while plaintiff was in Kansas examining the land for which he had traded.

Plaintiff testified that on the night after the papers had been signed and...