Kelly v. Thuey

• Decision Date: 11 November 1896
• Citation: 37 S.W. 516
• Parties: KELLY et al. v. THUEY et al.
• Court: Missouri Supreme Court

37 S.W. 516

KELLY et al. v. THUEY et al.

Supreme Court of Missouri, Division No. 1.

November 11, 1896.

ALTERATIONS OF INSTRUMENT — EFFECT OF IMMATERIAL ALTERATION — SPECIFIC PERFORMANCE — CONTRACT.

1. A written instrument is not invalidated by an immaterial alteration.

2. An alteration of a contract for the sale of land, by inserting a correct description of the

balance of the price, such description having been omitted, is immaterial, and therefore does not invalidate the instrument.

3. A contract for the sale of land need not state the whole consideration, to warrant specific performance.

Error to circuit court, Jackson county; Frank Hagerman, Special Judge.

Suit by James T. Kelly and another against Richard Thuey and another. There was a judgment for defendants, and plaintiffs bring error. Reversed.

Doggett & Rosenzweig and H. L. McCune, for plaintiffs in error. Karnes, Holmes & Krauthoff, for defendants in error.

BARCLAY, J.

This is a suit to enforce specific performance of a contract for the sale of some land in Kansas City. The plaintiffs are James T. Kelly and Daniel T. Kelly. The defendants are Richard Thuey and George W. Bush. The chief defense is that the agreement sought to be specifically enforced was altered after the parties to it had signed. The alleged alteration is indicated by italics in the following copy of the agreement: "Kansas City, Mo., Dec. 16, 1885. Rec'd of D. T. Kelly fifty dollars, being in part payment of the purchase price of fifty-two feet X 50 off the west end of lot No. 7, block twelve, 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 price, six hundred and sixty-four dollar 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 him. Richard X Tooey. Bridget X Tooey. D. T. Kelly. Witness: Katie Tooey." The petition states that Daniel T. Kelly executed the agreement for his brother, James T. Kelly, and that the earnest money mentioned ($50) was paid by Daniel out of funds furnished by James. The testimony was to the same effect. The answer admitted that Thuey had agreed with Kelly to sell the land for $1,664, but set up the alteration mentioned, as well as certain other defenses of lesser importance. The defendants no longer insist upon them, except as indicated in the course of this opinion. It will not, however, be necessary to recite the pleadings or evidence at any length, as the substance of the controversy can be given more shortly. The trial judge found all the issues for the plaintiffs except as to the alteration of the document. On that point his finding was as follows, and it presents with clearness the serious question involved on this appeal: "The court further finds that the contract sued on was, without consent of defendants, or either of them, by Daniel T. Kelly changed after the execution, by interlining therein the words `six hundred and sixty-four dollars,' and that this change did not materially alter the contract. The court concluded, as a matter of law, that plaintiffs cannot recover, for the sole reason that the contract was so altered." The other defendant, Bush, occupies the same position in equity as his co-defendant, according to the finding of the trial court. The facts on that issue are simply these: After the agreement above quoted had been concluded, Mr. Thuey sold the land in question to Mr. Bush, for a larger price than Kelly was to pay. Bush had full notice of the prior bargain. It is conceded by all concerned in the present review that Mr. Bush stands in no better position than the original vendor. The trial court found that the interlineation (exhibited by italics in the copy) had been made by Daniel T. Kelly after the execution of the agreement by the other parties. For that reason, the court found for the defendants, though on all other issues the findings were for the plaintiffs. The plaintiffs brought the case here by writ of error. The further particulars of the suit may be interesting, but it is unnecessary to give them, as the foregoing shows the vital outlines of the controversy.

1. The learned trial judge reached the conclusion he announced by holding that "any change in a contract made by a party after execution, and without consent, whether the change be material or otherwise, avoids and annuls such contract." His finding, already quoted, and his memorandum in giving judgment, indicate that view distinctly. And there is some apparent support for that ruling to be found in remarks which have been dropped by the way in reported cases in the supreme court. But a close examination will disclose that in most, if not all, of those cases, the alterations discussed were material alterations, and the remarks alluded to were unnecessary and outside the facts in judgment. The earliest Missouri decision which has been cited as countenancing such a doctrine is Haskell v. Champion (1860) 30 Mo. 136, a case of a most material alteration. Not only does the opinion in that case point out the materiality of the alteration before the court, but the learned writer of that opinion refers to section 565 of Professor Greenleaf's work on Evidence, as authority on the subject in hand. In the section cited, we find this language: "An alteration, therefore, which causes it [the document] to speak a language different in legal effect from that which it originally spake, is a material alteration." And in the next section (566) it is written: "An alteration is an act done upon the instrument, by which its meaning or language is changed. If what is written upon or erased from the instrument has no tendency to produce this result, or to mislead any person, it is not an alteration." In Evans v. Foreman (1875) 60 Mo. 449; Bank v. Dunn (1876) 62 Mo. 79; Moore v. Hutchinson (1879) 69 Mo. 429; Bank v. Fricke (1881) 75 Mo. 178, and Morrison v. Garth (1883) 78 Mo. 434, the alterations were material, and correctly held to be; so that any observations in those cases of wider reach than the facts called for should not properly be considered as changing the sound rule on this topic declared by Professor Greenleaf, as well as by many Missouri cases. In Aubuchon v. McKnight (1823) 1 Mo. 312, Judge McGirk, speaking for the court, held the alteration of a date in a note fatal, because "the date was material." Materiality of the alteration is mentioned as an essential fact in the judgments in Whitmer v. Frye (1847) 10 Mo. 348; Trigg v. Taylor (1858) 27 Mo. 245; Ivory v. Michael (1863) 33 Mo. 398; Owings v. Arnot, Id. 406; Patterson v. Fagan (1866) 38 Mo. 70; Woods v. Hilderbrand (1870) 46 Mo. 284. While in State v. Dean (1867) 40 Mo. 464, the change of a bond so as to read "Franklin" instead of "Francis," in the recital of the first name of a claimant of property (which had been seized on execution),...