Hollmann v. Conlon

• Decision Date: 29 March 1898
• Citation: 143 Mo. 369,45 S.W. 275
• Parties: HOLLMANN v. CONLON et al.
• Court: Missouri Supreme Court

45 S.W. 275

143 Mo. 369

HOLLMANN v. CONLON et al.

Supreme Court of Missouri, Division No. 2.

March 29, 1898.

EXECUTORY CONTRACT TO SELL LAND — SPECIFIC PERFORMANCE — DISCRETION OF COURT — ESSENCE — ESTOPPEL.

1. Specific enforcement of an executory contract to sell land rests in the sound discretion of the court, and will not be granted if the decree would be inequitable between the parties.

2. Time is the essence of an agreement to sell land which gives the purchaser, before payment of the purchase price, 10 days in which to examine the title.

3. Under an agreement to sell land, which afforded the purchaser 10 days in which to investigate the title, and provided for the return of the earnest money if the title was defective, a failure to pay the purchase money at the end of that time will bar an action for specific performance by the purchaser, where the title was regular.

Appeal from St. Louis circuit court; John M. Wood, Judge.

Suit by Henry C. Hollmann against J. A. Conlon and another for specific performance of an agreement to sell land. From a decree in favor of plaintiff, defendants appeal. Reversed.

G. A. Finkelnburg, for appellants. Fisse & Kortjohn, for respondent.

SHERWOOD, J.

Specific performance was asked and obtained upon the following unilateral contract, to wit: "Office of Green & La Motte, S. E. Cor. Eighth and Chestnut Streets, St. Louis, January 7th, 1893. No. 47. Received of Henry C. Hollmann the sum of one hundred dollars, in part payment for a certain parcel of improved property, lying in city block No. 34, and having a front of twenty feet six inches, on the west side of Main or First street, by a depth of one hundred and forty-one feet nine inches, to an alley, and being lot 6 of said block, together with the improvements thereon, being building known as No. 17 South Main street, which property is this day sold to him for the total sum of four thousand dollars, payable in cash. It is agreed by and between the undersigned that the title to said property is perfect, and will be conveyed free from liens and incumbrances, except as to taxes for the year 1893, which the undersigned purchaser agrees to pay. If, upon examination, the title proves to be defective, and cannot be made good in a reasonable time, the sale shall be off, and the earnest money returned. This sale is made subject to the approval of the owner. If sale is not approved, then the earnest money shall be refunded, and the sale be void. Rents now paid go to seller. Purchaser to assume lease expiring March 31, 1895. The said Henry C. Hollmann is accorded 10 days' time from this date in which to have the title investigated. Signed and sealed in duplicate by the parties hereto. J. A. Conlon, by Green & La Motte, Agts. [Seal.] By W. P. Lightholder. [Seal.]" The separate answers of defendants consisted of general denials.

The substance of the testimony is to the effect that plaintiff had negotiations with Conlon in the latter part of December, 1892, respecting the property in question. Such negotiations resulted in the payment by plaintiff to Conlon of $100, and the reference by the latter to Green & La Motte, as his agents, that they would send plaintiff a receipt by mail, which was done next day. By the 11th day of January next thereafter the title had been investigated, but no step was taken by Hollmann to settle the matter, nor did he inform Conlon, nor the latter's agents, Green & La Motte, that an examination of the title by Gehner showed that the taxes on the land for 1892, amounting to $83.02, remained unpaid. On the 17th day of January, in the afternoon, Hollmann telephoned to Green & La Motte that he was ready to close the transaction, but still did not inform them that the abstract of title prepared by Gehner showed the taxes for 1892 were unpaid. Upon receiving this telephone message, Green & La Motte sent Lightholder down to Hollmann's place of business with a deed from Conlon for the property, in order to deliver the deed to Hollmann, and to collect the balance of the purchase money, to wit, the $3,900. On Lightholder's arrival, Hollmann for the first time announced that his title examiner had reported the taxes for the year 1892 were unpaid, and thereupon offered to draw a check for the $3,900 less the taxes. This offer Lightholder peremptorily refused to accept, telling Hollmann at the same time that the taxes had been paid, that he himself had paid them, and that the title examiner had erred in his report; but Hollmann asserted that he would stand by his title examiner. Upon Hollmann announcing this determination, Lightholder invited Hollmann to go with him to the title examiner and have the mistake corrected, but this Hollmann declined to do. Lightholder thereupon returned to Green & La Motte's office, where Conlon was waiting to receive his money, and reported what had transpired. Pursuant to instructions, Lightholder called at Hollmann's store again, and tried to finish the business, and asked Hollmann to go with him to the collector's office, and he would satisfy him from the books there that the taxes were indeed paid, and so entered on those books; but Hollmann refused. Finding himself again baffled by the obstinacy of Hollmann, Lightholder returned to the office of Green & La Motte for further instructions, and, receiving them, for the third time went to Hollmann's store, and told him that he would have to pay the amount due, and without deduction, or the sale would be off. But Hollmann replied as he had done before, and throughout these conversations constantly asserted that he had paid the title examiner to investigate the title, was satisfied with that examination, and would do nothing further. During this last conversation, Lightholder, as he testifies, took the $100 earnest money, and tendered it to Hollmann; but this is denied by Hollmann and an employé of his, who was in Hollmann's office at the time. Lightholder returned the $100 to Conlon. The uncontradicted evidence, not only that of Lightholder, but also of the deputy tax collector, and of the tax books and receipts themselves, produced in court, show that the taxes had in fact been paid on December 30, 1892, and consequently that, in the contention made on this point by Hollmann, Conlon was right and Hollmann was wrong. While Lightholder was endeavoring to close the transaction with Hollmann, Conlon was waiting at Green & La Motte's office for his money. The evidence shows that he was sadly in need of the money to pay off a mortgage debt, having come from his home in Chicago to St. Louis expressly for the purpose of selling his property in order to raise the funds which he needed; that he had relied on the matter being closed and the money paid within the time agreed upon in the receipt; that, having been delayed, he felt very angry at the delay, and the failure to close the transaction and get his money by the time appointed, to wit, January 17th; and so, on the 18th of January, he offered the property to defendant Green for the same price as theretofore offered, and Green, as a mere matter of accommodation, bought the property, and received a deed therefor, paying in cash the purchase price, $4,000, to Conlon, who returned to Chicago that night. On the 20th day of January Hollmann went to Green & La Motte's office, and, asking for Conlon's address in Chicago, was told that anything left there for him would be forwarded to Conlon. Thereupon Hollmann left, and on same day wrote the following letter: "St. Louis, January 20th, 1893. Mr. J. A. Conlon, Chicago, Ill. — Dear Sir: A few days ago I received the certificate of title for 17 S. Main street. I telephoned your agents to call at 2 p. m. to get check for same, which they agreed, and they did come down to my office. The title shows that the tax and sprinkling was not paid. I showed same to the young man. He told me they were paid. He told me to go to Mr. Gehner, and have it taken off. He went away, and came back, and told me I must pay all or sale would be off. I told him that I was ready at any time to pay him if that amount for taxes, &c., was canceled. He told me that I could go to the court house and see that it was paid. Now, as I paid $25 for the investigation, I do not think I should run after same to find out if it was paid. Don't think you would. Please send me the receipt, and I shall send money to your agents. Very resp., H. C. Hollmann & Co." This letter never reached Mr. Conlon, and was returned by the post office to the writer about February 15th. On the 11th day of February,...