Gwin v. Waggoner

• Decision Date: 04 March 1889
• Citation: 98 Mo. 315,11 S.W. 227
• Parties: GWIN v. WAGGONER et al.
• Court: Missouri Supreme Court

11 S.W. 227

98 Mo. 315

GWIN v. WAGGONER et al.

Supreme Court of Missouri.

March 4, 1889.

CONTRACTS — INTERPRETATION — EVIDENCE.

1. Plaintiff executed an absolute deed, and the same day the parties to it made a written agreement, acknowledging part payment, and stating that the balance should be paid when a sale to a third person, then being negotiated, should be completed, and out of the proceeds of such sale; and, if no sale should be made, the grantees should not be held for further payments. The sale was completed, and afterwards an instrument, by which plaintiff agreed to accept the payments in a different manner, was signed by him, and by K. for himself and partners, who were alleged to be the grantees. The latter denied the partnership. In an action against the grantees and K. for the balance of the price, held, that the deed and contract of the same day should be construed as one instrument, and that it was error to charge that the deed was presumptive evidence of a sale, especially as to K., who was not a party to it.

2. Plaintiff testified that he wanted a paper to show the balance due him, and the agreement of the date of the deed was prepared, and was signed by him without reading it, or knowing its contents. Held that, plaintiff not being ignorant or under disability or infirmity, his failure to read the instrument, or to inform himself of its contents, was his own fault, and was not sufficient to overcome its legal effect.

SHERWOOD, J., dissenting.

Appeal from circuit court, Jackson county; TURNER A. GILL, Judge.

Action by John A. Gwin against William H. Waggoner, George P. Gates, and S. K. Knox. Defendants appeal.

Karnes & Krauthoff and Gates & Wallace, for appellants. C. O. Tichenor and A. Comingo, for respondent.

RAY, C. J.

Plaintiff brought this action to recover a balance of $5,500, with interest, alleged to be due him by defendants on account of a sale to them of his one-fifth interest in the Tilden mine, located in the state of Colorado. Plaintiff obtained judgment, and defendants have appealed, and assign for error certain exceptions taken in the progress of the trial to the exclusion of evidence offered in their behalf, and to the action of the court in giving instructions for plaintiff, and certain alleged misconduct of the jury. Speaking generally, it may be said that the principal and controlling question involved in the cause, as shown in the evidence on both sides, and in the instructions asked and given at the instance of the parties, is whether the defendants were in fact purchasers of said mine, and of plaintiff's interest therein, under a conveyance thereof to them by plaintiff, or whether said conveyance was made by plaintiff and others to Gates and Waggoner, two of these defendants, with the knowledge and understanding that said mine was in fact being sold by and through said defendants and one O. P. Chisholm to certain New York parties, and with the understanding that defendants were to be liable for the purchase money only in the event that they received the same from said Chisholm or said parties in New York. The starting point of the transaction seems to be January, A. D. 1879, at which time plaintiff and other owners of said mine executed their bond to defendants, the main purport of which was to give defendants the option or right of election to purchase said mine at a specified sum, on or before December 1st following. Defendants contracted, further, to expend the sum of $5,000 in developing said mine, and were to have this sum refunded to them on the sales of ore taken from the dumps of the mine, in the event that they should elect not to purchase the same. A second bond was afterwards, but on the same day, also executed by plaintiff and his co-owners to defendants, which recited a sale of their interests, being four-fifths of said mine, to defendants, and whereby, upon the payment or deposit in bank of the specified sum by defendants, on or before said December 1, 1879, the said owners undertook to execute and deliver proper deeds for said mining property. Said instrument is, we apprehend, in legal effect, the ordinary title bond for a deed. No effort was, it seems, ever made by either party to enforce said bonds, or either of them. Their importance, if any, was, unless we have misconceived the case, mainly as evidence supposed to bear upon the main question whether defendants were, in fact, purchasers of said mine, and upon the right of defendants to retain certain sums, afterwards collected by them, and arising from the sale of the said mining property.

Plaintiff claims, and he so testifies, that after the expiration of the bond, which provided for a compensation of $22,000 to each of said owners for his interest in said mine, said S. K. Knox, one of these defendants, offered him in Colorado $9,000 for his one-fifth interest, stating at the time that he had bought out the other owners at that figure; which proposition plaintiff says he accepted, with the further agreement that his expenses to Independence and return would be borne by said Knox. Some four or five days afterwards plaintiff and others went to Independence, as plaintiff testifies, to make the necessary deeds and to collect the money. At this time, to-wit, December 11, 1879, while at Independence, plaintiff and others executed and acknowledged a deed of general warranty to Gates and Waggoner, two of these defendants, conveying said mine, which said deed was placed of record in Chaffee county, Colo., where said mine was situated, in January, 1880. At the same time plaintiff and other owners of said mine executed a certain other and further agreement, as follows:

"This agreement, made and entered into this 12th day of December, 1879, by and between J. S. Shank, 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 of their right, title, and interest in and to the Samuel J. Tilden mining lode, situated in Chaffee county, Colorado. Upon delivery of said deeds said parties have this day received cash payment from said second parties, as follows, to-wit: Said John S. Shank, the sum of one thousand dollars, ($1,000.00;) said John A. Gwin, the sum of one thousand dollars, ($1,000.00;) and James W. Shumate, on his individual one-tenth (1-10) interest in said mine or lode, the sum of one thousand dollars, ($1,000.00,) — the receipt of all which sums is 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 O. P. Chisholm, and out of money arising from such sale. Further payments from such money, arising from said sale to said Chisholm, will be due the parties of the first part as follows: To said John S. Shank, the sum of eight thousand dollars, ($8,000.00;) to said John A. Gwin, the sum of eight thousand dollars, ($8,000.00;) and to said James W. Shumate, the sum of thirty-five hundred dollars, ($3,500.00,) for his 1-10 individual interest in said mine, and the further sum of forty-five hundred dollars, ($4,500.00) for the interest of his children in said mine, when a guardian's deed, duly executed according to law, is delivered to 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 agreed that said sale to said Chisholm is to be completed, if at all, in sixty (60) days from this date.

                  [Signed]      "JOHN S. SHANK
                                "JAMES W. SHUMATE
                                "JOHN A. GWIN
                

"We, Mary O'Neal and John S. Shank, have this day executed a deed for our one-fifth interest in the Samuel J. Tilden lode, and receive in cash the sum of $1,000. The further sum of $8,000 is yet due us, to become payable to us only, subject to the conditions and stipulations of the above contract.

"Witness our hands this 15th day of December, 1879.

                  [Signed]       "MARY O'NEAL
                                 "JOHN S. SHANK."
                

On December 16th thereafter defendants, by quitclaim deed, conveyed the said property to O. P. Chisholm, of New York, which said deed was filed for record in Colorado, in April, 1880. Said Chisholm afterwards deeded the property to the Tilden Mining Company, a corporation of New York, which paid $20,000 cash therefor, and gave its notes for $55,000, secured by stock of said...