Hartzell v. Crumb

• Decision Date: 31 January 1887
• Citation: 3 S.W. 59,90 Mo. 629
• Parties: Hartzell et al. v. Crumb, Appellant
• Court: Missouri Supreme Court

3 S.W. 59

90 Mo. 629

Hartzell et al. v. Crumb, Appellant

Supreme Court of Missouri

January 31, 1887

Appeal from Cape Girardeau Court of Common Pleas. -- Hon. Robert L Wilson, Judge.

Reversed.

Smith & Krauthoff, B. Pike and D. L. Hawkins for appellant.

(1) Damages claimed because of an increase of the value of the lands are not general, but special. It was necessary therefore, that the damages thus claimed should be alleged with particularity, in order to prevent surprise to the defendant. State v. Blackman, 51 Mo. 319; O'Leary v. Cowan, 31 Mo. 117; Lusk v Briscoe, 65 Mo. 555. (2) The petition is founded upon a contract alleged to be evidenced by the receipt of August 20, 1881, signed by "O. P. Hedges & Co., Agents." The receipt is not a contract of the defendants, but of O. P. Hedges & Company, and the defendants are not liable on the same in this action. Chouteau v. Paul, 3 Mo. 260; 3 Bing. on Real Prop. 481; Pumpelly v. Phelps, 40 N.Y. 59. (3) At law the time of the performance of the contract, when expressed in it, is of its essence; if not so expressed, the time for the performance depends upon the intentions of the parties, to be gathered from the circumstances of the transactions. Leake on Contracts, 848, 849; 1 Sugden on Vendors [8 Am. Ed.] pp. 410-11, sec. 13, note e. Even in equity, from the nature and circumstances of the contract, time may become of its essence. 1 Story's Eq. [11 Ed.] sec. 776. (4) If, in the sale of real estate, the only thing to be done on the part of the vendor is to deliver the deed, or on the part of the vendee to pay the purchase money (if no time for the performance of these acts is fixed in the contract), they are performable on demand. The one party has a right to the money on tender of a deed, and the other to a deed on tender of the money -- on demand. Warren v. Wheeler, 8 Met. 97, 99, 100; Manuel v. Holdredge, 45 N.Y. 151, 153; Meason v. Kanie, 67 Pa. St. 126, 134, 135; Russell v. Ormsbee, 10 Vt. 274, 277. (5) A breach of contract occurs when there is "any defect in the performance of it." Leake on Contracts, 868. The evidence in the case at bar shows numerous breaches. Crumb's unequivocal act of refusal of the deeds and his return of the purchase money was a breach of the contract. Gehr v. Hagerman, 26 Ill. 438. (6) The court committed error in declaring that the loss of the bargain was an element of damages as applicable to the facts of this case. Such damages are not recoverable, where the vendor without fraud refuses to convey, because of inability to make a good title. Flureau v. Thornhill, 2 W. Black. 1078; Engel v. Fitch, 4 B. & S. 421; Kirkpatrick v. Downing, 58 Mo. 32; 1 Sedg. on Dam. [7 Ed.] 364, 370.

Dennis & Smith for respondents.

(1) The facts constituting the damages are sufficiently alleged in the petition. Kelley v. Beauchamp, 59 Mo. 178; Lusk v. Briscoe, 65 Mo. 560. (2) The contract sued on was that of the principal, and not of Hedges & Company. Stackpole v. Arnold, 11 Mass. 27; Story on Agency [8 Ed.] sec. 147. The authorities cited by appellant, to maintain the position that the name of the principal must be signed by the agent, are cases of instruments under seal. Whenever it can be gathered from the whole instrument that the party describes himself and acts as agent, and intends thereby to bind the principal, it will be sufficient. Story on Agency [8 Ed.] sec. 160a; Lindus v. Brodwell, 5 Com. B. 583; Fuller v. Hooper, 3 Gray, 334. Parol evidence is also admissible to show whether a contracting party is principal or agent. Wilson v. Hart, 7 Taunt. 260; Potter v. Yale College, 8 Conn. 60; Railroad v. Benedict, 5 Gray, 561. (3) In a contract like the one sued on, time is never of its essence unless made so by the contract. 1 Sugden on Vendors [8 Ed.] 396. The construction of contracts in regard to the time of their performance is the same in equity as at law. Leake on Contracts, 845. No time having been expressed in the contract, and the delivery of the abstracts being a condition precedent going to the whole contract, a reasonable time will be implied, and it cannot be rebutted by extrinsic testimony going to fix a definite time, because this would vary the contract. 1 Sugden on Vendors [8 Ed.] 396; Leake on Contracts, 848; Atwood v. Cobb, 16 Pick. 227. (4) The vendor of land is bound to deliver to the purchaser a full and fair abstract of title at his own expense. The delivery of the title deeds is not equivalent to the delivery of an abstract, unless accepted as such. Home v. Wingfield, 3 M. & G. 33; 2 Leake on Contracts, 831. (5) Failure to pay purchase money is no cause for forfeiture. Leach v. Torney, 21 Ia. 271; Presser v. Hildebrand, 23 Ia. 483; Wells v. Maxwell, 32 Beav. 408. It is a general rule that a party having a right of rescission, because of the fault or act of the other, should make known his rescission as soon as may be after he knows his right to rescind. 2 Parsons on Contracts [7 Ed.] 815; Central Bank v. Pinder, 46 Barb. 467. And the right to abandon a contract rests only in the party who has been guilty of no fault, for one cannot take advantage of his own wrong in order to put an end to a contract into which he has entered. 2 Chitty on Contracts [11 Am. Ed.] 1092, 1093; 2 Parsons on Contracts [7 Ed.] 813. When the facts are disputed, or if the question of time depends upon other controverted facts, or where the motives of the party enter into the question, it has been said that the whole must necessarily be submitted to a jury. Hill v. Hobart, 16 Me. 164; Greene v. Dingley, 24 Me. 131; Ellis v. Thompson, 3 M. & W. 445. (6) Where the question as to reasonable time depends upon facts in issue, it is for the jury. Wells on Law and Fact, 135. It is only where the facts are clear and undisputed that the question what is reasonable time is for the court. Wiggins v. Burkham, 10 Wall. 132. (7) The trial court properly declared the law as to the rule of damages, as laid down in Kirkpatrick v. Downing, 58 Mo. 44; 2 Suth. on Dam. 212, 213, 214; Wells v. Abernathy, 5 Conn. 222; Hopkins v. Lee, 6 Wheat. 118. Doherty v. Dolen, 65 Me. 89, 90; Hopkins v. Yowell, 5 Yerger, 306. "The measure of damages is the value of the estate at the time of the breach." 8 Humph. 653; Bryant v. Hembrick, 9 Ga. 135; Pumpelly v. Phelps, 40 N.Y. 64, 65, 67; Mason v. Kaine, 67 Pa. St. 134; Drake v. Baker, 34 N. J. L. 358.

OPINION

Black, J.

Plaintiffs, who are partners under the name of Hartzell & Brother, brought this suit to recover damages for a breach of the following contract:

"Received of Hartzell & Brother one hundred dollars as earnest money on purchase of 722 acres, leaving a balance of fourteen hundred dollars (describing land), in Bollinger county, Missouri, the last described 165 acres to be Q. C. deed, balance warranty, from the owner, D. S. Crumb, and his wife.

"O. P. Hedges & Company, Agents.

"Bloomfield, Mo., August 20, 1881."

Hedges & Company were real estate agents at St. Louis, and had Crumb's land for sale as his agents. Hartzell, Hedges and Crumb met at Bloomfield, and the above contract was then made on the day of its date. It was signed by Hedges in the presence of and at the request of Crumb. Hartzell then paid the one hundred dollars, fifty of which Crumb retained, and the balance was handed to Hedges to procure abstracts and forward them to Hartzell in Indiana, and, if satisfactory, Hartzell was to send the balance of the purchase money to St. Louis. Crumb forwarded deeds to a bank at St. Louis on the twenty-second of the same month to remain there for ten days. The first abstract was not such as Hedges and Crumb saw fit to submit to Hartzell, and others were procured. This caused considerable delay. In the meantime the bank returned the deeds to Crumb. Hartzell received the abstract about the first of October, 1881, and at once remitted the balance of the purchase money to a bank in St. Louis. Crumb, on receiving notice of this, wrote Hedges a letter in which he enclosed a check for the fifty dollars earnest money, and in it he says: "I became satisfied that your purchaser had given up the trade and gave Weber the refusal again. He this day tells me he will take the land." Hedges refused to receive the check, saw Crumb, and it would seem the latter agreed to make the deeds. At all events, on the twenty-fourth of October, 1881, Crumb sent to St. Louis a quit-claim deed of the land to Hartzell. In a letter of the same date to Hedges, he notified the latter of that fact, and then refers to adverse claims made to the land, and says he does not want, at the price at which he was selling the land, to have any trouble thereafter. Hartzell refused to accept this deed, and insisted upon a warranty and a quit-claim deed, as agreed upon in the contract. There is evidence to the effect that Crumb refused to make the deeds, as he had agreed, because of the increased value of the lands, from the contemplated or actual construction of a railroad near to them. On the other hand, there is evidence tending to show that the abstracts disclosed some defects in Crumb's title; that Bollinger county made claim to the land, and for these reasons he declined to convey to plaintiff by warranty deed. He sold the land to Brown on the fourth of April, 1882, by quit-claim deed, for fifteen hundred dollars.

1. It is earnestly insisted, in an elaborate brief for the appellant, that the court erred in the instruction as to the measure of damages. By this instruction the jurors were told that the measure of damages would be the sum paid on the contract with six per cent. interest, and, in addition thereto, the difference between the price Hartzell & Brother agreed to pay and the market value of the land at the time of the breach. The rule of Flureau v. Thornhill, 2 W Black....