Kelly v. Thuey

• Decision Date: 29 March 1898
• Citation: 45 S.W. 300,143 Mo. 422
• Parties: Kelly et al., Plaintiffs in Error, v. Thuey et al
• Court: Missouri Supreme Court

45 S.W. 300

143 Mo. 422

Kelly et al., Plaintiffs in Error, v. Thuey et al

Supreme Court of Missouri

March 29, 1898

Error to Jackson Circuit Court. -- Hon. Frank Hagerman, Special Judge.

Affirmed.

Doggett & Rosenzweig and Dobson & McCune for plaintiffs in error.

(1) In actions for specific performance each case must be determined on its own merits. If upon a whole view of the facts and circumstances, the court shall be of the opinion that the contract is fair, just and equitable, it will use its extraordinary authority and decree specific performance. Ivory v. Murphy, 36 Mo. 542; 2 Story's Eq. Jur [13 Ed.], sec. 742; Tyson v. Watts, 1 Md. Ch. 13. (2) The findings of the Supreme Court on the facts at issue in the previous actions are final. Wells on Res. Adj. [1 Ed.], secs. 368, 378 and 380; Gibson v. Chouteau, 7 Mo.App 1; Cooley v. Warren, 53 Mo. 166; Wood v Ensel, 63 Mo. 193; Rice v. McFarland, 34 Mo.App. 404; Belch v. Miller, 37 Mo.App. 628; Parker v. Straat, 39 Mo.App. 616; Preston v Ricketts, 91 Mo. 320; Keith v. Keith 97 Mo. 223. (3) The execution of the written instrument upon which the petition is founded, not having been denied by answer, verified by affidavit, should have been adjudged confessed. R. S. 1889, sec. 2186; Gleason v. Hamilton, 138 N.Y. 353; Coburn v. Webb, 56 Ind. 96; Green Co. v. Wilhite, 29 Mo.App. 465; Zervis v. Unnerstall, 29 Mo.App. 474; Collins v. Bowmer, 2 Mo. 195. (4) The presumption in addition to the weight of the evidence is that the contract was altered before signing and delivery. McCormick v. Fitzmorris, 39 Mo. 24; Holton v. Kemp, 81 Mo. 661; Cox v. Palmer, 1 McCrary, 431; Paramore v. Lindsey, 63 Mo. 63. (5) Whenever an alteration has been made by common consent of the parties or before delivery, the instrument will not be avoided. Evans v. Foreman, 60 Mo. 449; Woodley v. Constant, 4 Johns. 54; Speake v. U.S. 9 Cranch, 28; Stites v. Probst, 69 Ill. 382. (6) The right to fill blanks in a written instrument is a recognition of this doctrine. Smith v. Crooker, 5 Mass. 538; Whitney v. Daniel, 1 Hen. and Mumf., 391; Eagleton v. Gutteridge, 11 Mees. & Wel. 465; Adams v. Frye, 3 Met. 108; Visher v. Webster, 8 Cal. 109; Mitchell v. Culver, 7 Cow. 335; Owen v. Perry, 25 Iowa 412. (7) Whenever neither the rights nor interests, duties nor obligations of either of the parties to the written instrument, are in any way changed by an alteration thereof, the alteration is immaterial, and will not avoid the instrument. Derby v. Thrall, 44 Vt. 413; Duker v. Franz, 7 Bush, 273; Bldg. Ass'n v. Fitzmaurice, 7 Mo.App. 283. (8) The general principle is that an alteration, to avoid an instrument must be material -- that is, such an one as causes the instrument to speak a language different in legal effect from that which is originally spoken. Draper v. Wood, 17 Am. Rep. 97; Express Pub Co. v. Aldine Press, 126 Pa. St. 352; Nichols v. Johnson, 10 Conn. 192; Bank v. Carson, 60 Mich. 432; Cornell v. Nebeker, 48 Ind. 459; Burnham v. Ayer, 95 N.H. 354; Miller v. Reed, 27 Pa. St. 244. (9) An alteration is also harmless when made to correct a mistake, and to conform the instrument to what all parties to it agreed, or intended it should be. Murray v. Klinzing, 64 Conn. 78; Ames v. Colburn, 11 Gray (Mass.), 390; Eagleton v. Gutteridge, 11 Mees. & Wel. 465; Boyd v. Brotherson, 10 Wend. (N. Y.) 90; Greene County to use v. Wilhite, 29 Mo.App. 459. (10) Fraud is the foundation of the rule that an alteration avoids the enforcement of a written instrument. Fisher v. King, 25 A. 1029; Wolferman v. Bell, 32 P. 1017; Adams v. Frye, 3 Met. (Mass.) 103; Rogers v. Shaw, 59 Cal. 260; Huntington v. Finch, 3 Ohio St. 445. (11) The rule in regard to the alteration of negotiable paper is more stringent than that respecting the alteration of deeds or other written instruments. Burnett v. McCluey, 78 Mo. 676; Neff v. Horner, 63 Pa. St. 327; Nichols v. Johnson, 10 Conn. 192. (12) An alteration made by the agent of the vendor, or obligor, with his express or implied consent does not avoid his written instrument. State to use v. Dean 40 Mo. 464; Owen v. Perry, 25 Iowa 412; Field v. Stagg, 52 Mo. 534; Nichols v. Johnson, 10 Conn. 192; Pequawket Bridge v. Mathes, 8 N.H. 139; Morrill v. Otis, 12 N.H. 466; Burnham v. Ayer, 35 N.H. 351; Nickerson v. Swett, 135 Mass. 514; Van Brunt v. Eoff, 35 Barb. (N. Y.), 501; Bigelow v. Stephens, 35 Vt. 521. (13) It was not necessary that the purchase price should have been expressed in the memorandum of sale, provided that the parties had agreed upon the same. The suit is based on the oral contract. The statute of frauds does not require the contract of sale to be in writing. Tiedeman on Sales, Bennett's Notes [Ed. 1888.], 199; Bean v. Valle, 2 Mo. 126; Halse v. Halse, 8 Mo. 303; Ellis v. Bray, 79 Mo. 227; Fricker v. Tomlinson, 1 Man. & G. 772; Gibson v. Hollan, 1 L. R. C. P. 1. (14) Equity vested the land in question in Kelly upon the execution of the contract sued on. Bush, in the eye of equity, is the trustee of a naked trust, and he can not be heard to invoke equitable defenses, when he is shown to be a fraudulent purchaser. Bush does not even claim to be a bona fide purchaser without notice. Halse v. Halse, 8 Mo. 303; Le Neve v. Le Neve, Amb. 439; 11 White & Tudor's Lead. Cas. Eq., part 1, p. 109; Wade on the Law of Notice, sec. 50, p. 27; 1 Story's Eq. Jur. [11 Ed.], secs. 395, 397; Mulliken v. Graham, 22 Smith (Pa. St.), 484; Rupert v. Mack, 15 Ill. 542; Cox v. Milner, 23 Ill. 409; Curtis v. Mundy, 3 Met. 407; Bond v. Hopkins, 1 Sch. & Lef. R. 413; Stephenson v. Smith, 7 Mo. 610; Widdicombe v. Childers, 84 Mo. 382; Meier v. Blume, 80 Mo. 179; Thompson v. Henry, 85 Mo. 451.

Karnes, Holmes & Krauthoff for defendants in error.

(1) An alteration was apparent on the face of the contract and the burden of proof was on the plaintiffs to explain the alteration. Stilwell v. Patton, 108 Mo. 360; Paramore v. Lindsey, 63 Mo. 66; Matthew v Coalter, 9 Mo. 676; Cox v. Palmer, 1 McC. 431, 434; U. S. v. Linn, 1 How. (U.S.) 111; Lawson Pres. Ev., rule 85, p. 389; Jones Const. Com. and Trade Cont., sec. 273 et seq.; Stephens' Dig. Ev. [Chase's Ed.], p. 158; 3 Randolph Com. Paper, secs. 1784, 1785. (2) The evidence sustains the finding of the trial court: "The contract sued on was, without consent of the defendants or either of them, by Daniel T. Kelly changed after the execution by interlining therein the words, 'six hundred and sixty-four dollars.'" (3) The opinion of the Supreme Court in the first case of Kelly v. Thuey, 102 Mo. 522, 527, is not an adjudication of the facts at issue in this case. The contract sought to be enforced in this case is signed by Daniel T. Kelly and Richard Thuey and Bridget Thuey. All that was decided in Kelly v. Thuey, 102 Mo. 522, 527, in regard to the alteration was: "The proof does not sustain the averment." Herman on Estop., p. 118; State v. Newkirk, 49 Mo. 472; Wells Res. Adj., sec. 619; Gurley v. Railroad, 26 S.W. 953; Boone v. Shackleford, 66 Mo. 497; Bird v. Sellers, 26 S.W. 670; Gardner v. Railroad, 150 U.S. 349; Carroll v. Inter-State, Etc., Co., 107 Mo. 653. (4) The contract sued on having been, without the consent of the Thueys, altered after its execution, can not be specifically enforced. Haskell v. Champion, 30 Mo. 136; Evans v. Foreman, 60 Mo. 449; Bank v. Armstrong, 62 Mo. 68; Bank v. Dunn, 62 Mo. 80; Moore v. Hutchinson, 79 Mo. 430; Bank v. Fricke, 75 Mo. 178; Morrison v. Garth, 78 Mo. 434; Moore v. Bank, 22 Mo.App. 684; Hord v. Taubman, 79 Mo. 101; Allen v. Dornan, 57 Mo.App. 288. (5) Counsel for plaintiffs in error define a material alteration to be "such an one as causes the instrument to speak a language different in legal effect from that which it originally spoke." Tested by this rule, the alteration was material. Ringer v. Holtzclaw, 112 Mo. 522; Smith v. Shell, 82 Mo. 215. "Decided cases everywhere require that the memorandum should mention the price." Williams v. Morris, 95 U.S. 455; Grafton v. Cummings, 99 U.S. 106; 1 Warvelle on Vendors, p. 105, sec. 10; 1 Reed, Stat. Frauds, sec. 417; Waterman, Spec. Perf., sec. 146; Pomeroy, Spec. Perf., sec. 94; Fry, Spec. Perf., sec. 335; 8 Am. and Eng. Ency. of Law, p. 726. (6) The point that the answer should have been verified is not well taken. No such objection was presented to or decided by the trial court. Otherwise defendants in error could and doubtless would have verified their answer. The petition set out the contract sued on in exact words. Its terms were pleaded in no other manner. Defendants alleged an interlineation in the contract. Plaintiffs replied denying the new matter. No objection was made to the introduction of any evidence of the alteration. No motion was made for judgment on the pleadings. The motion for new trial did not specify any such ground of exception. R. S. 1889, sec. 2302; Danforth v. Railroad, 27 S.W. 715; Girard v. St. Louis Car Wheel Co., 27 S.W. 652; Nolan v. Johns, 28 S.W. 892; Thompson v. Wooldridge, 102 Mo. 510. Objections to the sufficiency of an answer must be presented in the trial court and can not be raised for the first time on appeal. Klein v. Fischer, 30 Mo.App. 568; Smith v. Lindsey, 89 Mo. 75; Edmondson v. Phillips, 73 Mo. 57; Haynes v. Trenton, 27 S.W. 622; Hayden v. Railroad, 28 S.W. 75. Objections to the want of verification of a pleading are waived by pleading over. Boone, Code Plead., secs. 34, 261, 270; Loan and Trust Co. v. Organ, 36 P. 733. The objection must be made in the trial court. Arnold v. Slaughter, 36 W.Va. 589; Speer v. Craig, 16 Col. 478; San Francisco v. Itsell, 80 Cal. 57; Lange v. Dammier, 119 Ind. 567. (7) It is lastly contended that even if Daniel T. Kelly did interline the contract after its execution, he had full authority as agent of Thuey to make the change. ...