Grigg v. Lively
| Decision Date | 07 December 1923 |
| Parties | JOHN R. GRIGG, Respondent, v. M. R. LIVELY, Administrator of the Estate of H. M. ZIMMERMAN, deceased, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court.--Hon. J. D. Perkins, Judge.
REVERSED.
Judgment reversed.
M. R Lively, Allen McReynolds and Halliburton & Burkhead for appellant.
(a) The petition fails to state facts sufficient to constitute a cause of action or equitable relief against respondent, M. R Lively, Administrator. Defect of petition is not waived. McQuitty v. Wilhite, 213 Mo. 586. (b) This evidence does not support the allegations of the petition or the finding of facts or the conclusions of law or the judgment. There is a fatal variance in the evidence and the pleadings. Laclede Construction Company v. Tudor Iron Works, 169 Mo. 137. The plaintiff must recover on the cause of action sued on and not another. Gardner v. Atlas Portland Cement Co., 193 S.W. 31; Rhodes v. Gunman, 156 Mo.App. 344; Kellerman Construction Co. v. Chicago House Wrecking Co., 137 Mo.App. 392. (c) The court erred in not holding and ruling that the right of procedure in this case is exclusive under the statute. The petition alleges on a contract in writing for the conveyance of real estate, not executed by intestate, or its execution provided for. In order to enforce specific performance, he must proceed under statute in such cases provided; or in circuit court by statute provided. Secs. 168, 174, R. S. 1919. If specific performance of contract for conveyance of real estate in writing executed by intestate is not sought, then whatever claim or demand plaintiff has becomes a claim or demand against the estate of the deceased and he is limited to his procedure under the statute in such cases, i. e., Secs. 186 188, R. S. 1919. The petition at bar does not present a demand against the estate of Zimmerman or the administrator. The record shows plaintiff abandoned his remedy for specific performance. Remedies of vendee in executory contract of sale of real estate. 39 Cyc. 766, 1996. Claim arising out of breach of contract of sale is one which must be presented and allowed against the estate. 18 Cyc. 455, Note 86; 147 P. 259; 93 P. 723; Beekman v. Richardson, 150 Mo. 436; Titterington v. Hooker, 58 Mo. 593; Pierce v. Calhoun, 59 Mo. 274. (d) The one-year Statute of Limitations in the presentation and allowance of demands applies to this case. Sec. 182, R. S. 1919. Sec. 191, R. S. 1909. At time of commencement of administration in present case. In cases where demands are contingent and actual due date cannot be determined: Sec. 182, R. S. 1919, does not commence to run until the cause of action accrues and becomes effective from that date. Miller v. Woodward & Thornton, Admrs., 8 Mo. 169; Finney Admr. v. State to Use of Estiss, 9 Mo. 225; Chambers' Admr. v. Smith's Admr., 23 Mo. 174; Burton v. Rutherford, 49 Mo. 225; Singleton v. Townsend, Admr., 45 Mo. 379; Tenny's Admr. v. Lasley's Admr., 80 Mo. 665; Morgan v. Gibson, Admr., 42 Mo.App. 234; Greenbaum v. Elliott, Admr., 60 Mo. 25; Donnelly v. Hodgson, Admr., 13 Mo.App. 15; State ex rel. v. Tittman, 134 Mo.App. 163; State ex rel. v. Browning, 102 Mo.App. 457; Home Ins. Co. v. Wickham, 281 Mo. 300. Exception does not apply. Garvesche v. Lewis' Admr., 93 Mo. 197; Tenny's Admr. v. Lasley's Admr., 80 Mo. 665. (e) In the case at bar, when the plaintiff dismissed as to Lively, individually, or the judgment found in his favor, under the pleadings and the evidence, the judgment rendered against Lively, Administrator, was unauthorized. McLaughlin, v. McLaughlin, Admr., 16 Mo. 250-251. Plaintiff must recover on the cause of action stated in the petition and not upon one stated in the reply. Busch v. Sturges, 281 Mo. 598. The court erred in ruling and holding, in effect, that the plaintiff could rescind the contract sued on in this case. Rescission, if had, must be in toto. The contract sued on was joint; neither Elliott nor his representatives were in court. 6 R. C. L., page 936, sec. 318; Och v. M., K. & T. R. R. Co., 130 Mo.App. 45. The right to rescind must be exercised within a reasonable time. In this case it was over three years. 6 R. C. L., 932, sec. 315; Park v. Richmond Turnpike Co., 1 L. R. A. 198. The burden is upon plaintiff to establish: (1) That an unconditional offer to rescind was made in a reasonable time; (2) that the cause was not the fault of plaintiff. Emery v. Boecheimer Shoe Co., 167 Mo.App. 703; Sumrell v. American Multigraph Sales Co., 172 Mo.App. 384; 6 R. C. L., pp. 1076-1077, par. 11. The court erred in overruling respondent's motion for new trial, over his objection and exception. Authorities cited above. The court erred in overruling respondent's motion in arrest of judgment, over his objection and exception. This motion raises the sufficiency of the pleadings to sustain it; the sufficiency of the evidence to sustain it, and the form of the judgment and the effect of the judgment. Authorities above stated. Judgment must be within the limitations of pleadings. Lewis et al. v. School, 244 S.W. 90, Adv. sheet Nov. 22, 1922; Williamson v. Frazee, 242 S.W. 958. (f) The judgment rendered directs that execution issue against the administrator. It is needless to cite authorities to show that an execution cannot issue against the estate of deceased persons; no such proceeding has been allowed in the State since 1827. Judgments against such persons or their representatives have to be classed as other demands under our statutes and repeated decisions of the courts. Brown v. Woody, 64 Mo. 551; Wernecke v. Woods, Admr., 58 Mo. 352; Sweringen v. Admr. of Eberius, 7 Mo. 421; Carson v. Walker, 16 Mo. 68.
Grover C. James for respondent.
(a) The petition in this case contains a clear and concise statement of facts entitling plaintiff to recover for money had and received, and alleges that defendant is holding same under such circumstances that he should not retain it, and that it should, according to equity and conscience, be returned to the plaintiff, to whom it belongs. The petition states facts sufficient to constitute a cause of action against appellant. 27 Cyc. 849, 878; Clifford Banking Company v. Conovan Commission Company, 195 Mo. 262, 288; Ford-Davis Mfg. Co. v. Maggee, 233 S.W. 267, 268; Garnett & Allen Paper Co. v. Midland Pub. Co., 156 Mo.App. 187; Gwin v. Smur, 49 Mo.App. 361. (b) Plaintiff's petition also states facts sufficient to constitute an action for rescission of the contract mentioned therein and the return to plaintiff of the money paid by him on the purchase price under the contract. The petition contains a prayer not only for the return of the money paid to appellant, but for full equitable relief. The petition, plaintiff's reply and the evidence in the case sustain the judgment on the grounds of rescission. 9 C. J. 1160; 39 Cyc. 2001. 6 R. C. L., sec. 310, page 925; Page on Contracts, secs. 2883, 3023; Black on Rescission & Cancellation, sec. 196, page 505; Parsons v. Kelso, 141 Mo.App. 369, 374; Black on Rescission, sec. 216, page 573. (c) This being an equitable action the probate court would have no jurisdiction in a controversy of this character. Therefore, the sections of the statutes cited by appellant do not apply. Trustees v. McElhinney, Admr., 61 Mo. 540; In re Estate of Glover & Shepley, 127 Mo. 153, 163; Ivie v. Ewing, 120 Mo.App. 124, 129; Tenney v. Turner, 111 Mo.App. 597. (d) The statute does not apply to suit for rescission of a contract, nor for claims arising from contracts with the administrator. Woerner on the American Law of the Administration (3 Ed.), sec. 386, page 1248; Kline v. Gingery, 124 N.W. 958. (e) The special Statute of Limitations as to the presentation and allowance of demands does not apply in this case. Bramell v. Adams, 146 Mo. 70, 84; Pierce v. Pierce, 139 Mo.App. 416; Woerner on the American Law of Administration (3 Ed.), sec. 152, page 521; Woerner on the American Law of Administration (3 Ed.), sec. 402, pages 1333, 1334; Nashua Savings Bank v. Abbott, 181 Mass. 531, 63 N.E. 1058, 92 American State Reports, 430, 434. (f) Assuming that the contract involved in this controversy is a joint one, under our statutes the same shall be construed to be joint and several, and a suit may be brought and prosecuted and recovery had against any one or more of those who are liable thereunder or in connection therewith. Secs. 2155 and 2158, R. S. 1919; Bagnall Timber Co. v. Mo. Kans. & Texas Ry. Co., 242 Mo. 11, 19; Huff v. Doerr, 206 Mo.App. 563, 568; Rounds v. Strang, 192 Mo.App. 568, 573. (g) The commencement of the specific performance suit in the probate court of Jasper county, Missouri, under the contract involved in this controversy, and the dismissal of that proceeding by the plaintiff, does not prevent plaintiff from maintaining this suit. 20 C. J. 31; Cowan v. Young, 282 Mo. 36, 47; Otto v. Young, 227 Mo. 193, 219; Johnson-Brinkman Com. Co. v. Mo. Pac. Ry. Co., 126 Mo. 344, 353; Steinbach v. Murphy, 143 Mo.App. 537, 540; Gwin v. Smur, 49 Mo.App. 361, 365; Nashua Savings Bank v. Abbott, 181 Mass. 531, 63 N.E. 1058, 92 American State Reports, 430, 434.
This is a suit to recover back money paid under a contract to purchase land. Plaintiff recovered and defendant appealed.
November 20, 1915, plaintiff entered into a contract in writing with H. M. Zimmerman and C. E. Elliott, owners, for the purchase of about fifty-five acres of mining land in Jasper county at the price of $ 600 per acre. At the same time a contract was entered into whereby plaintiff was to do certain drilling, etc. The tract was to be surveyed, abstract and title made satisfactory, and purchase price paid by March 22,...
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