Gwin v. Waggoner

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

22 S.W. 710

116 Mo. 143

Gwin, Appellant, v. Waggoner, et al

Supreme Court of Missouri, First Division

May 22, 1893

Appeal from Saline County Circuit Court. -- Hon. Richard Field Judge.

Reversed and remanded.

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

The trial court erred in refusing to permit the case to be passed upon by the jury; this action was contrary to the mandate on the former appeal (98 Mo. 315). The following authorities all support the position here contended for. Hurck v Erskine, 50 Mo. 116; State v. Newkirk, 49 Mo. 472; Overall v. Ellis, 38 Mo. 209; Chouteau v. Gibson, 76 Mo. 38; Taliaferro v. Barnett, 47 Ark. 359; Chambers v. Smith, 30 Mo. 156; McKinley v. Tuttle, 42 Cal. 576; Braden v. Graves, 85 Ind. 92; Conroy v. Iron Works, 75 Mo. 651; Estoppel and Res Judicata, Herman, secs. 115, 116, 117.

Gates & Wallace and Karnes, Holmes & Krauthoff for respondents.

(1) The deed to Waggoner and Gates and the contract of December 12, 1879, have been adjudged to be contemporaneous instruments, and are now admitted to be such. The instruments being contemporaneous, it has been ruled, with manifest correctness, that they "are to be construed and read together as if embodied in one and the same instrument." 98 Mo. 325; Hamilton v. Elliot, 5 S. & R., 375; Greenfield's Estate, 14 Pa. St. 489; Rogers v. Smith, 47 N.Y. 327; Jackson v. Dunbaugh, 1 Johns. Cas. 95; Campbell v. Thomas, 42 Wis. 441; Brownell v. Arnold, 60 Mo. 79; Railroad v. Atkinson, 17 Mo.App. 484, 494. (2) The result is that "the defendants were to be held liable for the balance of said purchase money only in the event and contingency of said sale to Chisholm." 98 Mo. 325; More than that, as the obligation was to pay "out of money arising from such sale," there was no liability on the contract until this fund had come into existence by being actually collected by the defendants. Crowell v. Plant, 53 Mo. 145; 1 Daniel Negotiable Instruments, [4 Ed.] secs. 509, 517; Moody v. Cass County, 74 Mo. 307; Campbell v. Polk County Court, 76 Mo. 57; Dodge v. Coddington, 3 Johns. 146; Newhall v. Clark, 3 Cush. 376. (3) It may be noted also, in passing, that no question is now made as to the binding effect of the contract of December 12, 1879. Its validity is not challenged by any pleading and but little time was devoted to proof that the plaintiff signed it without reading it or knowing its contents. However, this circumstance, even if true, would not change the binding obligation of the instrument. 98 Mo. 327, 328; Mateer v. Railroad, 105 Mo. 320; Campbell v. Van Houten, 44 Mo.App. 231; 2 Wharton on Evidence, sec. 932; Greenfield's Estate, 14 Pa. St. 489; Faucett v. Currier, 115 Mass. 20. (4) If the instrument of May 17, 1880, be construed as having made the defendants liable for the unpaid purchase money, it is necessary that it should be supported by a sufficient consideration. The rights and liabilities of the parties had long previously been fixed. The defendants were not original debtors to the plaintiff. The debt was due by another party; and even if the defendants agreed to pay it, a new consideration was necessary to support their promise. Pfeiffer v. Kingsland, 25 Mo. 66; Cook v. Elliott, 34 Mo. 586; Williams v. Williams, 67 Mo. 662.

Macfarlane J. Barclay, J., is absent.

OPINION

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. 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 eleventh 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, Colorado (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 seventeenth 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 seventeenth day of May, 1880, the sum of $ 2,500; on the fifth day of June, 1880, $ 4,000; on the twenty-fifth day of June, 1880, the further sum of $ 1,000 cash and five hundred 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 twelfth 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 delivering 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 O. 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, $ 2,000 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 five hundred 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 seventeenth day of May, A. D. 1880.

"Witness: "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 first 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 $ 5,000 shall...