Heman v. Wade

• Decision Date: 22 June 1897
• Citation: 140 Mo. 340,41 S.W. 740
• Parties: HEMAN et al. v. WADE et al.
• Court: Missouri Supreme Court

41 S.W. 740

140 Mo. 340

HEMAN et al. v. WADE et al.

Supreme Court of Missouri, Division No. 1.

June 22, 1897.

VENDOR AND PURCHASER — CONTRACT — ASSIGNMENT — VALIDITY — INSTRUCTIONS.

1. A land contract stipulating that the purchase money paid should be forfeited in case of failure to pay the remainder of the price by a certain date, but that the obligation to purchase at the price named should continue binding on vendee, was not a mere option which became forfeited by vendee's failure to make such payment by the date specified.

2. Where a land contract was assigned by vendee, and vendor in pursuance thereof conveyed to the assignee, an objection by a third party, holding under a lease in which such contract is expressly recognized, that such contract was invalid

because executed on behalf of vendee by an agent without authority in writing, was without merit.

3. Where the only rental value of real property which the evidence tended to prove was its value for certain purposes, it was not error to refuse an instruction based on a different theory.

4. Where plaintiffs were entitled to damages for the possession of real property at the rate of $75 per month for nearly 12 months, a judgment on a verdict for $150 will not be disturbed on the alleged ground that damages were allowed for too long a period.

Appeal from circuit court, St. Louis county; Rudolph Hirzel, Judge.

Action by Heman & Batdorf against Wade & Wade. From a judgment on verdict in favor of plaintiffs, defendants appeal. Affirmed.

Alfred Gfeller, for appellants. T. J. Rowe, for respondents.

BRACE, J.

This is an action in ejectment, instituted on the 16th of May, 1894, in the circuit court of the city of St. Louis, to recover possession of five lots in block 2,202 in the city of St. Louis, in which the plaintiffs obtained judgment in the circuit court of St. Louis county, to which the case was taken by change of venue; and the defendants appeal.

The facts disclosed by the plaintiffs' evidence are as follows: On the 5th of January, 1894, the Hydraulic Press Brick Company, being the owner of the premises, by their agents, Adam Boeck & Co., entered into the following contract with one Patrick H. Clark: "$500. Received January 5, 1894, of Patrick H. Clark, Esq., the sum of $500 on account of purchase money for lots numbered 23, 24, 25, 26, and 27, in block No. 2,202, of the city of St. Louis, state of Missouri, according to the plat thereof made by the Hydraulic Press Brick Company, and duly filed in the office of the recorder of deeds in the city of St. Louis, Missouri, according to which plat said lots have together a front of 250 feet on the north line of Forest Park Boulevard, and extend northwardly between parallel lines 182 feet 5 1/8 inches to an alley 20 feet wide, and are bounded north by said alley, east by lot No. 28, in said block, south by Forest Park Boulevard, and west by lot No. 22, in said block; which ground the said Clark has this day bought subject to all the ordinances and conditions now enforced and concerning said lots, at the price and sum of $12,500, to be paid as follows: $4,166.67, less the amount hereby receipted for, to be paid on or before the 3d day of February, 1894; the remainder to be paid in two equal annual installments next after the date hereof, with interest from date at the rate of six per cent. per annum, payable semiannually, and to be secured by deed of trust upon the ground sold at purchaser's expense. Title to be perfected, and all taxes paid up to and including the year 1893, but all taxes accruing for the year 1894 and thereafter, whether general or special, shall be paid by the purchaser. It being especially understood that the grantor herein is not to be liable for any taxes for the improvement of street or alley. If said Clark fails to pay the sum hereby required to be paid on or before the 3d day of February, 1894, the $500 hereby receipted for shall be forfeited to Adam Boeck & Co., but the obligation to purchase at the price of $12,500 shall continue, and be binding upon said Clark." The said Clark failed to pay the first installment of $3,666.67 on or before the 3d of February, 1894, and afterwards, to wit, on the 23d day of March, 1894, the brick company leased the premises...