Gwin v. Waggoner

• Decision Date: 22 May 1893
• Citation: 116 Mo. 143,22 S.W. 710
• Parties: GWIN v. WAGGONER et al.
• Court: Missouri Supreme Court

22 S.W. 710

116 Mo. 143

GWIN v. WAGGONER et al.

Supreme Court of Missouri, Division No. 1.

May 22, 1893.

CONTRACTS — INTERPRETATION — RES JUDICATA.

1. A question will be deemed adjudicated on the former appeal of a case only when the same must have been presented as necessary to a decision, and directly considered and decided.

2. Plaintiff executed an absolute deed for mining property. At the same time the parties made a written agreement acknowledging part payment, and stating that the balance was to be paid out of the proceeds of a sale to a third person, then being negotiated. If no sale was made the grantees were not to be held for further payments. The sale was completed, after which there was a supplementary agreement, signed by plaintiff, and others with him, reciting certain times when the deferred payments could be made. Held, that defendants were bound only to pay such money as was received by them on the resale.

Appeal from circuit court, Saline county; Richard Field, Judge.

Action by John A. Gwin against William H. Waggoner and others. Judgment for defendants. Plaintiff appeals. Reversed.

W. A. Alderson, Frank P. Sebree, and Samuel Boyd, for appellant.

Gates & Wallace and Karnes, Holmes & Krauthoff for respondents, cite Kiley v. Kansas City, 69 Mo. 102; Sprague v. Rooney, 82 Mo. 493; Jenning v. Railway Co., 99 Mo. 394, 11 S. W. Rep. 999; and O'Bryan v. Allen, 95 Mo. 68, 8 S. W. Rep. 225, — besides other cases referred to by name in opinion, to show that the court has not always adhered strictly to the rule forbidding reconsideration, on the subsequent appeal of a case, of questions determined on the previous appeal.

MACFARLANE, J.

This is the second appeal. On the first, defendants appealed from a judgment against them, and the judgment was reversed, and the cause remanded for a new trial. The opinion will be found in 98 Mo. 315, 11 S. W. Rep. 227. The case was tried the second time upon the same pleadings, and at the close of all the evidence the court peremptorily instructed the jury to return a verdict for defendants, which was done, and a judgment was rendered accordingly, and plaintiff appealed.

A full statement of the case will be found in the opinion by Ray, C. J., on the former appeal, but for convenience we will briefly restate the facts. The petition charged, in substance, that prior to the 11th day of December, 1879, in consideration of $9,000, plaintiff bargained and sold to defendants one fifth interest in the "Tilden mine," situated in Chaffee county, Colo., (particularly describing it,) and thereafter, on said day, by general warranty deed, he conveyed the same to defendants William H. Waggoner and George P. Gates. That $1,000 cash was paid on delivery of the deed, leaving a balance due plaintiff of $8,000. "That on the 17th of May 1880, the plaintiff agreed to accept, and defendants agreed to pay plaintiff, the balance unpaid and due him of said consideration of said sale and conveyance of said property as aforesaid, as follows: On the 17th day of May, 1880, the sum of $2,500; on the 5th day of June, 1880, $4,000; on the 25th day of June, 1880, the further sum of $1,000 cash and 500 shares of the said Tilden Mining Company of New York." The petition charged that $2,500, and no more, was thereafter paid, and judgment was prayed for the balance, being $5,000. The defense was that the defendants were not the purchasers of the mine, and that the conveyance to them was merely in the capacity of agents to facilitate a sale to other parties, then being negotiated, and that such conveyance was coupled with a contract that the defendants were not to be held liable for the purchase money unless such contemplated sale was consummated, and then only out of the proceeds thereof when collected. The collateral contract relied upon by defendant was dated the day after the date of the deed, and is as follows:

"This agreement, made and entered into this 12th day of December, 1879, by and between John S. Shanks, J. A. Gwin, and James W. Shumate, parties of the first part, and William H. Waggoner and Geo. P. Gates, parties of the second part, witnesseth that said parties of the first part have this day executed and delivered deeds to said parties of the second part, conveying all their right, title, and interest in and to the Samuel J. Tilden mining lode situate in Chaffee county, Colorado. Upon delivery of said deed said parties have this day received cash payments from said second parties as follows, to wit, said John S. Shanks the sum of $1,000, said John A. Gwin the sum of $1,000, and the said James W. Shumate, on his individual one-tenth interest in said mine or lode, the sum of $1,000, the receipts of all which sums are hereby acknowledged. It is further agreed and understood as follows, to wit: That the remaining purchase money for said lode is to be paid to said parties of the first part when a sale (now being negotiated) of said lode is made and completed to one C. P. Chisholm, and out of money arising from such sale. Further payments from such money arising from such sale to said Chisholm will be due the parties of the first part as follows: To said John S. Shanks the sum of $8,000; to said John A. Gwin the sum of $8,000; and to the said James W. Shumate the sum of $3,500 for his one-tenth individual interest in said mining lode, and the further sum of $4,500 for the interest of his children in said mine, when a guardian's deed duly executed according to law is delivered to the said parties of the second part. It is further expressly understood and agreed that, if no sale is made of said lode to said Chisholm, then the said parties of the second part are not to be held for the further payments above mentioned, or any part thereof. It is further understood that said sale to said Chisholm is to be completed if at all, in sixty days from this date. [Signed] John S. Shanks. James W. Shumate. John A. Gwin."

It may be stated here that the other original owners of the mine joined with plaintiff in the sale and conveyance of their respective interests. The agreement of May 17, 1880, referred to by plaintiff in his petition, was as follows:

"This is to certify that we, the undersigned, Geo. W. Knox, J. S. Shanks, and John A. Gwin, do hereby agree to accept certain payments due us on the Tilden mine as follows, to wit: May 17, 1880, $2000 each to the said Knox and Shanks, and $2,500 to the said Gwin; June 5, 1880, $4,000 cash to each of the above-mentioned parties; and June 20, 1880, $1,000 cash to each and 500 shares of the capital stock of the Tilden Mining Company of New York to each of the above-mentioned parties, with the express understanding, however, that no ore shall be taken from the dump of said mine until the above amounts be paid in full. We hereby agree, however, that work may go on as the party now in charge of this mine may prefer. Witness our hands and seals this, the 17th day of May, A. D. 1880. Geo. W. Knox. [Seal.] J. S. Shanks. [Seal.] John A. Gwin. [Seal.]

"I hereby agree to the above, and accept the same on the part of myself and partners. S. K. Knox."

In January preceding this sale the plaintiff, in conjunction with those interested with him in the ownership of this mine, "bonded" it, as it is called; that is to say, gave plaintiff the option to purchase four-fifths of the property for the sum of $88,000, if taken by the 1st of December, 1879; and by a contract entered into contemporaneously with the bond, plaintiff and his co-owners agreed to do certain specified work in the development of the mine, for the expense of which defendants agreed to furnish the money in monthly payments aggregating $5,000, defendants reserving the right to elect whether or not they should furnish an additional amount. It was further "agreed that, after deducting all working and other necessary expense, the balance received from the ore extracted shall be paid to the parties of the second part [defendants] until the sum of five thousand dollars shall have been so paid, after which the net proceeds arising from the sale of ores shall be equally divided between the contracting parties." About February, 1880, defendants conveyed the property to C. P. Chisholm by quitclaim deed for an express consideration of $142,000. It was in evidence that Chisholm conveyed the property to the Tilden Mining Company, for which it agreed to pay $75,000. Of that amount $10,000 was paid in cash to defendants. Defendant Gates testified that he retained $7,500 of this amount on account of the money paid out in the development of the mine, "and $2,000 we had advanced to the parties at the time the contract was made in December." The theory upon which plaintiff tried the case was that the sale of December 11, 1879, was an absolute one with conditional agreement that the deferred payments should be made, when a...