Houtz v. Hellman

• Decision Date: 31 May 1910
• Citation: Houtz v. Hellman, 228 Mo. 655, 128 S.W. 1001 (Mo. 1910)
• Parties: CHARLES HOUTZ v. BERTHA HELLMAN, Appellant
• Court: Missouri Supreme Court

128 S.W. 1001

228 Mo. 655

CHARLES HOUTZ v. BERTHA HELLMAN, Appellant

Supreme Court of Missouri, First Division

May 31, 1910

Appeal from St. Louis City Circuit Court. -- Hon. Robt. M. Foster Judge.

Reversed and remanded (with directions).

R. M Nichols for appellant.

(1) The contract shown in evidence being unilateral and containing a provision that it should be closed twenty days from February 3d, or earnest money forfeited, time of performance became the essence of the contract. Unless the purchase money was tendered and demand of a deed made on or before Saturday February 23, 1906, the right of the plaintiff to require the defendant to perform the contract became ipso facto gone. The contract was a mere option, because the vendee was not bound. Cockrell v. Bopp, 106 Mo.App. 555; Hollmann v. Conlon, 143 Mo. 369; Huer v. Rutkowsky, 18 Mo. 218; Fry on Specific Perf. (3 Am. Ed.), sec. 1073; Pomeroy on Contracts (2 Ed.), sec. 362; Pollock v. Brookover, 6 L. R. A. (N. S.) 403, note. (2) There was nothing in the evidence which would excuse the alleged vendee from showing his good faith in an effort to perform the contract by a tender of the money on February 23, 1906, or on February 25, 1906, and following up the tender by bringing the money into court and depositing it with the clerk. This was a performance of a contract which he did not seek. Deichman v. Deichman, 49 Mo. 107; Lanyon v. Chesney, 186 Mo. 540; Cockrell v. Bopp, 106 Mo.App. 555; Lumaghi v. Abt, 126 Mo.App. 221; Short v. Kieffer, 142 Ill. 266; Chaney v. Libby, 134 U.S. 68; Pomeroy on Contracts, sec. 362. (3) Houtz admittedly has no interest in this suit or the contract forming its basis. The Burdeau Real Estate Company, which is not a party, is alone in interest. Under the statute the suit must be brought in the name of the real party in interest. Under the contract, Houtz not being designated as agent, nor the Burdeau Real Estate Company as principal, no suit could be maintained in the name of the Burdeau Real Estate Company on the contract, and no suit should be maintained in the name of Houtz because he admittedly has no interest in the property. R. S. 1899, sec. 540; Kelly v. Thuey, 102 Mo. 522; Martin v. Platt, 5 N.Y.S. 284; Morris v. Lewis, 33 Ala. 53. (4) Houtz confessedly has no interest. Under the statute he cannot maintain the suit. The suit is not in his name for the benefit of the Burdeau Real Estate Co., and the latter could not maintain an action on the contract, because the contract is under seal. Clarke v. Courtney, 5 Pet. 319; Iron Co. v. Iron Co., 38 F. 66; Coal Tar Co. v. Fletcher, 61 Md. 288; Schaefer v. Henkel, 75 N.Y. 378; Brown v. Morris, 83 N.C. 254; Barham v. Bell, 112 N.C. 131; Kempner v. Dillard, 100 Tex. 505; Henrichs v. Engelhart, 137 N.Y. 494. (5) It was admitted that Burdeau wrote Houtz's name upon the counterpart of the contract shown in evidence, and placed it in the hands of the defendant. This was done for the purpose of deceiving defendant's agent into the belief that Houtz was the real purchaser. While it is perfectly legal to take a contract of sale in the name of an agent, it cannot be done by means of such false pretense, and although there was no damage shown by reason of such false pretense, a court of equity will not lend its aid to a company which through its president, has been guilty of such false pretense. 26 Ency. Law (2 Ed.), p. 47; Railroad v. Curtis, 154 Mo. 10; Kelly v. Railroad, 74 Cal. 557; Reynell v. Sprye, 1 DeG. M. & G. 660; 2 Pomeroy's Eq. Jur., secs. 873, 902, 903; Pomeroy on Contracts (Spec. Per.), sec. 268.

H. A. & C. R. Hamilton for respondent.

(1) A person with whom or in whose name a contract is made for the benefit of another, is a trustee of an express trust, and may bring an action for the enforcement of the contract, without joining the principal. R. S. 1899, sec. 541; Snyder v. Express Co., 77 Mo. 523; Wolfe v. Railroad, 97 Mo. 473; Kelly v. Thuey, 102 Mo. 522; Springfield v. Weaver, 137 Mo. 650; Sawyer v. Railroad, 156 Mo. 468; Simmons v. Wittmann, 113 Mo.App. 357. (2) Appellant was unable to convey a perfect title on the date specified in the contract, and no tender of performance by respondent was necessary. A purchaser, ready and willing to perform, is not required to tender the purchase money, when the vendor is unable to convey the land. 28 Am. and Eng. Ency. Law, p. 9; 29 Ib. 692; R. S. 1899, sec. 930; Reynolds v. Reynolds, 45 Mo.App. 622; Warren v. Crew, 22 Ia. 315; Gormley v. Kyle, 137 Mass. 189. (3) When the vendor claims to have rescinded, repudiates and denies the obligation of the contract, placing himself in such a position that it is evident if a tender was made its acceptance would be refused, then no tender need be made by the vendor. In such a case it is enough if the plaintiff offer by his bill to bring in the money when the amount is liquidated and he has his decree for performance. Deichman v. Deichman, 49 Mo. 107; Lanyon v. Chesney, 186 Mo. 540. (4) By filing an amended answer, appellant waived any error committed by the court in sustaining the demurrer to her former answer. Heman v. Glann, 129 Mo. 325. (5) The action of the court in sustaining the demurrer to the original answer is not subject to review, because the action of the court is not set up in the motion for new trial as one of the reasons therefor. Acock v. Acock, 57 Mo. 154; Williams v. Railroad, 112 Mo. 463.

OPINION

LAMM, P. J.

Specific performance of a contract for the sale of real estate. Defendant comes up from a decree for plaintiff.

On February 3, 1906, defendant, a widow, owned a lot fronting on the south side of Pine street, St. Louis, 21 feet 6 3-4 inches by a depth of 109 feet, with a building thereon known as "1420 Pine." At that time she was in Eureka Springs, Arkansas. Her son, Charles, held a warrant of attorney executed by her in 1892 at Mannheim, Germany, making him the donee of a power to sell and deed said lot -- its acknowledgment reading: "Before me, Jno. F. Winter, U.S. Consul at Mannheim, personally appeared the within named Bertha Hellman, who acknowledged that she signed, sealed and delivered the above power of attorney, on the day and year of its date, for the purposes, therein expressed. In testimony whereof," etc.

It will be seen that this acknowledgment does not state that Mrs. Hellman was "personally known" to the officer "to be the person whose name is subscribed to the instrument as a party thereto," as provided in section 913, Revised Statutes 1899; nor does it certify that she executed the instrument as her "free act and deed," as per the form of acknowledgment suggested by that section.

Under that power of attorney, Charles signed in duplicate a contract, viz.:

"CONTRACT OF SALE.

"St. Louis, Mo., Feby. 3, 1906.

"Received of Chas. Houtz two hundred and fifty dollars, as earnest money and part purchase money on account of the purchase of the following described property, situated in the city of St. Louis, State of Missouri, to-wit: Lot, together with improvements thereon, known as No. 1420 Pine st., situated on the south side of Pine st., 79 feet east of the east line of 15th st., said lot having a frontage of 21 feet six and 3-4 inches by a depth of 109 feet to alley, all in C. B. 499, which property is this day sold to Chas. Houtz for the total sum of seventy-five hundred dollars, payable as follows: All cash less amount of above earnest money herewith paid. Rents to be adjusted from date sale is closed. The title to said property to be perfect and to be conveyed by warranty deed free from liens and encumbrances, except taxes for the year 1906 and thereafter, which the undersigned purchaser agrees to pay.

"If the title be found imperfect and cannot be perfected within a reasonable time, said Chas. Houtz is to be paid the cost of examining title, and earnest money to be refunded.

"The sale under this contract to be closed within twenty days from date or earnest money forfeited.

"Accepted on above terms and conditions.

"Mrs. Bertha Hellman, (Seal)

"Chas. Hellman, (Seal)

Attorney."

The decree specifically performed the foregoing contract.

No question is made on the petition. Defendant's first answer covered four defenses: First, a general denial; second (in substance) fraud, viz., that Houtz has no interest in the subject-matter of the suit, was a "mere straw man or kite," held a "servile position" in a restaurant and was wholly without "means or substance;" that one Burdeau or some person unknown to defendant is the only person interested in the purchase, and if the contract is binding, it is for the use and benefit of Burdeau or such other person; that defendant was deceived by the false representations of Burdeau or such other person into believing that Houtz was a bona fide purchaser and was able and willing to purchase, etc., and that, to induce defendant to sign the contract and become bound, Burdeau or such other person, secretly and without the knowledge or authority of Houtz, signed his name to a duplicate of the contract and delivered the same to defendant, representing the signature as genuine, all of which statements were false and fraudulent, were relied upon as true and defendant thereby was induced to sign, etc.; third, that the contract in suit was void because "the same is the product or outgrowth of an effort of the person or persons offering for sale the said real property described in plaintiff's petition, without first having obtained the written authority of the owner of said property, or the written authority of her attorney in fact appointed in writing, or of first having obtained the written authority of the person who has made a written contract for the purchase of said property with the owner thereof, all of which pl...