Kelly v. Thuey

• Decision Date: 29 March 1898
• Parties: KELLY et al. v. THUEY et al.
• Court: Missouri Supreme Court

45 S.W. 300

143 Mo. 422

KELLY et al. v. THUEY et al.

Supreme Court of Missouri.

March 29, 1898.

ALTERATION OF CONTRACT — EVIDENCE — EFFECT — RATIFICATION — STATUTE OF FRAUDS — PLEADING — SECOND APPEAL — ACTION BY PRINCIPAL.

1. A rough draft of a contract to sell land, drawn up by the vendee, recited the receipt by the vendors of part of the purchase money, "the balance of the money to be paid as follows." Below these words, and interlined, appeared the words "six hundred dollars," which the vendee acknowledged he wrote. The vendee took this contract to his attorney, to be drawn up. The instrument in dispute was drawn by the attorney in black ink, and was taken to the vendors who were illiterate persons, to be signed. It was signed and witnessed in blue ink. An interlineation therein to the same effect as the one in the previous contract was afterwards found, written in brown ink. The vendee on a former trial testified that he made the interlineation in dispute at vendors' house at the time of its execution. At the second trial he testified that he made it on the way to the house, and on cross-examination said that he did not know where he made it. The other witness to the contract testified that the interlineation was not in the contract at the time of its execution, and that the only writing vendee did at the house was to write the names of the vendors for them. Held sufficient to show that the interlineation in the instrument was made by the vendee after i's execution, and without the knowledge of the vendors.

2. Where an alteration is apparent on the face of the contract, the burden of explaining it is on the party seeking relief under the contract.

3. Any change on the face of a contract made by a party thereto after its execution, and without consent, whether material or otherwise, nullifies the contract.

4. Plaintiff cannot claim that, if there had been an alteration of the contract sued on, it was done by his agent before delivery to him, and hence was only a spoliation by an unauthorized hand, since by suing on the contract in its altered state he ratifies the alteration.

5. A written contract for the sale of real estate, which does not state the price, nor furnish any data whereby the price can be ascertained, is incapable of enforcement, as within the statute of frauds.

6. Material omissions in contracts required by the statute of frauds to be in writing cannot be supplied by parol testimony.

7. Rev. St. 1889, § 2186, providing that, when a petition shall be founded on an instrument in writing charged to have been executed by the other party, the execution of such instrument shall be adjudged confessed, unless the answer is verified, does not apply to instruments executed by both parties to the suit.

8. The meaning of certain words used in a statute may be inferred from earlier statutes in which the same words or language have been used, where the intent was more obvious, or had been judicially established.

9. Where no motion for judgment on the pleadings was made on the ground that the answer was not verified, nor any objection to the evidence introduced thereunder, and the want of verification was not specified in the motion for a new trial, the objection cannot be urged on appeal.

10. A party is not bound by a decision on a former appeal of the case as to a point on which the evidence was entirely different on the second trial, where no directions were given in remanding the cause, and the judgment was reversed on another ground.

11. An undisclosed principal may sue in his own name for specific performance of a contract entered into by his agent, whether the principal was known or not during the transaction, and whether the party supposed he was dealing with the agent personally, and on his own behalf.

Robinson and Brace, JJ., dissenting.

In banc. Transferred from division. Affirmed.

For opinion in division, see 37 S. W. 516.

SHERWOOD, J.

This cause has been here before. 102 Mo. 522, 15 S. W. 62. It is an equitable proceeding for specific performance, and the record has been handed me by the present Chief Justice in order that I may prepare an opinion. The suit is grounded on the following contract:

"Kansas City, Mo., Dec. 16, 1885. Received of D. T. Kelly fifty dollars, being in part payment of the purchase price of fifty-two feet by fifty off the west end of lot No. 7, block 12, of Vineyard's addition to the City of Kansas, Jackson county, Mo. I agree to make and deliver a good and sufficient warranty deed, conveying said premises to said Kelly free of all incumbrances, without delay, and as soon as the abstract of title thereto shall have been examined and approved, at which time said Kelly shall pay to me the sum of nine hundred and fifty dollars in cash, and the balance of the purchase

                        six hundred and sixty-four dollars
                

price he shall pay in three equal annual installments, with 8 per cent. interest, to be secured by deed of trust executed on said property. If I shall fail to convey good title to said Kelly as aforesaid, then said fifty dollars shall be refunded to him. Richard X Tooey. Bridget X Tooey. D. T. Kelly. Witness: Katie Tooey."

The first agreement between the parties was also interlined. The original could not be found by defendants at the trial of this case. It was offered from the record in the first case of Kelly v. Thuey, and, as it there appeared, is as follows:

"Kansas City, December 16, 1885. Received of D. T. Kelly fifty dollars, as part purchase money for fifty-two feet of the west end of his lot situated on Troost avenue and Eighteenth street, the balance of the money to be paid as follows: One thousand dollars cash on delivery

                             six hundred dollars
                

of deed and abstract; balance to be paid in equal parts in one, two, and three years, in equal annual payments, at 8 per cent. per annum. It is understood that for the two feet party of the first part shall pay same in the same proportion. Bridget X Tooey. Richard X Tooey. Witness: D. T. Kelly, Katie Tooey.

"The balance of purchase money to be secured by bond and mortgage on said property. Party of the second part shall pay all taxes after the year 1885, and for party of the first part to pay balance. D. T. Kelly, Witness."

The fac simile of the litigated contract accompanies this opinion, and is here inserted. The abstract furnished by plaintiffs does not present an accurate copy of the contract in suit, in that no evidence of interlineation or alteration appears on its face. Nor does the petition count on or notice such interlineation or alteration, but proceeds as if nothing of the kind had occurred. The petition, among other things, alleges that Daniel T. Kelly has an individual interest by reason of his unpaid commissions; and at the former trial Daniel T. Kelly swore that he acted as the agent of both Thuey and J. T. Kelly. "I bought it [the lot] for J. T. Kelly and myself, and the interest I had in it grew from what I would get from both of them for my trouble." And at the last trial he also testified that he was the agent of both the contracting parties. The answer of defendants pleaded that defendant Thuey executed the instrument described in the petition, but that the words "six hundred and sixty-four dollars" were written in after Thuey had signed the instrument, and that said alteration was made without his knowledge or consent. Plaintiffs replied with a general denial. The instrument in controversy is written in black ink. It was prepared by J. C. Tarsney, to whom Daniel T. Kelly handed the original instrument, drawn by himself on two leaves of a book, and signed by Thuey and wife and taken by Daniel T. Kelly to Tarsney, to whom Kelly said it would be better to have it in "more legal form." Accordingly Tarsney drafted the instrument in question, which was then taken out to Thuey's by Daniel T. Kelly, where it was signed by Thuey and wife in blue ink, and witnessed by D. T. Kelly and Katie Thuey in ink of the same color. This contract drawn by Tarsney at the instance of Daniel T. Kelly has the interlined words, "six hundred and sixty-four dollars," written in ink of a brown color, and in a different handwriting from that of the body of the contract. The interlined words, "six hundred dollars," in the first contract, were also written by Daniel T. Kelly, as he admitted at the trial which occasioned the present writ of error. Daniel T. Kelly, the magna pars fuit in the negotiation of the contract, testified at a former trial that he had interlined the words aforesaid at Thuey's house, in the presence of Thuey, his wife and daughter. Asked who gave him the pen and ink with which to write the interlineation, he answered: "One of the women. I couldn't tell which." On the trial of the present case he stated on his direct examination that he made the interlineation on his way to Thuey's house, but on cross-examination he could not tell where he made the interlineation; saying in response to repeated questions, "I don't know." Katie Thuey, a disinterested witness, testified that she signed her name to the contract as a witness; that alterations now present in the contract were not there at the time; that the only writing Kelly did was to write the names of her father and mother; that then he signed his name, and she signed hers; and that all the names were written in the blue ink that they had there in her father's house. On the former trial, Daniel T. Kelly testified that there was an interlineation in a different colored ink made by him at a similar part of the first contract, and before its execution; that interlineation being, "six hundred dollars," while the one in the second contract was, "six hundred and sixty-four dollars."

1. Upon this state of the testimony and evidence, the special judge very pertinently observes: "If this interlineation in the first contract was made prior to the execution, it is passing strange that it was not noticed by Mr. Tarsney when h...