Kelly v. Thuey

• Decision Date: 19 January 1891
• Citation: 102 Mo. 522,15 S.W. 62
• Court: Missouri Supreme Court
• Parties: KELLY v. THUEY et al.

15 S.W. 62

102 Mo. 522

KELLY v. THUEY et al.

Supreme Court of Missouri.

January 19, 1891.

PRINCIPAL AND AGENT — SPECIFIC PERFORMANCE.

Where an agent makes an express contract in his own name to purchase land, and to give a deed of trust thereon to secure the unpaid purchase money, he alone can compel specific performance of the contract, though the vendor knew that he was acting for an unnamed principal.

Appeal from circuit court, Jackson county; J. H. SLOVER, Judge.

Chase & Powell and Karnes, Holmes & Krauthoff, for appellant. Dobson, Douglass & Trimble, for respondent.

BLACK, J.

This is an action for the specific performance of the following contract, which is dated 16th December, 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. * * *. 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 six hundred and sixty-four dollars the balance of the purchase 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 premises to said Kelly as aforesaid, then said fifty dollars shall be refunded to him.

                                             his
                                     "RICHARD X THUEY
                                             mark
                                              her
                                     "BRIDGET X THUEY
                                             mark
                                     "D. T. KELLY."
                

James T. Kelly, claiming to be the real purchaser, in due time tendered to Thuey the balance of the cash payment, and offered to perform the contract by executing his notes and deed of trust for the deferred payments. Two or three days after the execution of the contract, Thuey sold and conveyed the entire lot to the defendant Bush, who purchased with full knowledge of the outstanding contract.

1. One defense is that the contract was altered by inserting the words "six hundred and sixty-four dollars" after it had been executed; but the proof does not sustain the averment. Indeed, it is very clear that the words were inserted by way of interlineation before the contract was executed.

2. It is again insisted that D. T. Kelly procured the contract by false representations. The evidence shows that the lot was incumbered by a paving tax bill for $700; that Thuey was an old man, unable to read and write; that he owned no other property, and was obliged to either borrow money on the lot, or sell part thereof to pay the tax-bill. The claim is that Kelly told Thuey that, if he made a mortgage on the lot, he could not sell it; and in this way induced the latter to make the contract. The evidence shows that Kelly advised Thuey to sell, rather than borrow the money; but that is all it does show. The proof does not sustain the many allegations of fraud, deceit, and misrepresentations. Defendant Bush offered to purchase the lot on terms a little more advantageous to Thuey; and he, his wife and daughter, concluded to, and did, accept the offer. The evidence leads us to the conclusion that it was this offer made by Bush which induced Thuey to repudiate his contract with Kelly.

3. The further defense is that defendant Thuey made no contract whatever with the plaintiff James T. Kelly. The evidence of D. T. Kelly is that Thuey asked him to find a purchaser for a part of the lot, and that he mentioned the matter to his brother, James T. Kelly, who concluded to buy the 52 feet, and that he (D. T. Kelly) then entered into the contract in question. The first contract was informal, and James T. Kelly, the plaintiff, had a more formal one prepared, which is the one now in question; and D. T. Kelly signed it, and then had it signed by Thuey. James T. Kelly furnished the $50 paid at the time the contract was executed. As between the two Kellys, it is clear that the property was purchased for James T., but he had the contract made in the name of his brother. The other evidence does not show that Thuey knew James T. Kelly had any interest in the transaction. So far as the evidence goes, it would seem he had no such knowledge. The answer of Thuey, however, states that D. T. Kelly said a man for whom he was acting, but whose name he did not give, would purchase the property, and that by false statements he induced defendant to agree to sell the property to the party for whom Kelly was acting. We must take this verified answer as an admission that Thuey knew D. T. Kelly was buying the property for an unnamed person. The other evidence shows that he was acting for plaintiff, but this Thuey did not know. The contract was taken in the name of the agent by the directions of the plaintiff, for he had it prepared. Under these circumstances, can the plaintiff compel specific performance? Where, as here,...