Haynes v. Dunstan

• Decision Date: 03 May 1937
• Docket Number: No. 18923.,18923.
• Citation: 104 S.W.2d 1025
• Parties: HAYNES v. DUNSTAN.
• Court: Missouri Court of Appeals

104 S.W.2d 1025

HAYNES v. DUNSTAN.

No. 18923.

Kansas City Court of Appeals. Missouri.

May 3, 1937.

Appeal from Miller Circuit Court; R. A. Breuer, Special Judge.

"Not to be published in State Reports."

Action by W. M. Haynes against W. P. Dunstan, wherein the defendant filed a counterclaim. From the judgment, the plaintiff appealed to the Supreme Court , which transferred the case to the Kansas City Court of Appeals.

Affirmed.

R. F. White, of Eldon, for appellant.

Irwin & Bushman and Harry L. Buchanan, all of Jefferson City, for respondent.

CAMPBELL, Commissioner.

Action in ejectment to recover possession of 451 acres of land and for rent.

The sufficiency of the petition is not questioned.

The substance of the answer was that the defendant paid to the plaintiff the sum of about $2,000, as a part of the purchase price of the land; that plaintiff had not made a deed to the land as he agreed to do; and prayed recovery in the amount paid under the contracts.

Trial to the court without a jury resulted in a judgment for the plaintiff for possession of the lands, damage in the sum of $1, $5 per month rent from January 1, 1932, and judgment for defendant on his counterclaim for the sum of $1,800. The plaintiff has appealed.

The facts show that plaintiff and defendant on or about November 15 signed a written instrument as follows:

"This agrees that W. M. Haynes sells to W. P. Dunstan the 140 acres land lying west of road near Dunstan's house where he lives being the part owned by Haynes which lies in Morkan County north of Miller County land owned by Haynes.

"The purchase price is $1,600.00 and the receipt of a $500.00 check is hereby acknowledged.

"Haynes agrees to give Warrantee deed any time between now and March 1st, 1930, and Dunstan agrees to pay remainder of money by March 1st, 1930, and Dunstan agrees to pay Haynes 4 per cent interest on the remaining $1,000.00 till March 1st, 1930."

And the parties hereto on December 14, 1929, signed the following writing: "Haynes sells Dunstan 311 acres timberland for $2,900 and one bull. Haynes acknowledges $400. check paid and is to get bull in 2 weeks. Haynes deeds Dunstan land by June 1st, 1930. Dunstan pays 4 per cent on balance $2500."

And that on November 6, 1930, the parties hereto signed a writing as follows:

"This is to state that Whereas W. D. Dunstan has purchased the timber land adjoining him from W. M. Haynes for $4600., and has formerly paid fourteen hundred dollars and all interest due till June 3rd, 1930, that Dunstan has on November 6th, 1930, paid Haynes $200. on principal and $80.00 interest which pays all interest till November 3rd, 1930. Haynes extends Dunstans time for final payment till February 1st, 1931.

"The remainder of principal unpaid at this date is (November 6th, 1930) $3000. This principal of $3000 is to draw interest at 6 per cent per annum till February 1st, 1931."

The plaintiff contends that the failure of the defendant to make the payments as provided in the contracts precluded recovery by the defendant of the amount actually paid. This insistence is based upon the rule that a purchaser of real estate who contracts to pay the purchase price as a condition precedent to his right to receive a conveyance of the land cannot after paying a part of the purchase price rescind the contract, when the seller is not at fault, and recover the payments made. The rule upon which plaintiff relies is well established. Shupe v. A. J. King Realty Co. (Mo.App.) 29 S.W. (2d) 230; Doerner v. St. Louis Crematory & Mausoleum Co. (Mo.App.) 80 S.W. (2d) 721.

The rule, however, does not apply to the facts in this case. The defendant did not rescind the contracts; he merely failed to perform the terms of the contracts within the times therein provided. When the plaintiff brought this suit, he elected to rescind the contracts, and he may not have...