Kilpatrick v. Wiley

• Decision Date: 19 June 1906
• Citation: 197 Mo. 123,95 S.W. 213
• Parties: KILPATRICK et al. v. WILEY et al.
• Court: Missouri Supreme Court

95 S.W. 213

197 Mo. 123

KILPATRICK et al. v. WILEY et al.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

1. BROKERS—POWERS—DELEGATION.

Where a broker's power contained no power of substitution, he could not delegate his agency to another; and hence, a contract of sale having been made by a subagent, it was proper for the broker to obtain a re-execution thereof.

2. SAME—FRAUD—EVIDENCE.

In a suit to set aside a contract for the sale of land as a cloud on title, evidence held insufficient to establish a conspiracy on the part of the broker and the purchasers in making the contract and placing the same of record.

3. SAME—BURDEN OF PROOF.

Where, in a suit to set aside a contract for the sale of land as a cloud on title, the purchasers sought a decree for specific performance, and the broker a judgment for commissions, the burden of showing the validity of the broker's authority to make the sale rested on the purchasers and on the broker.

4. EQUITY—DECREE—CONFORMITY TO PLEADING AND PROOF.

Where, in a suit to set aside a contract for the sale of land as a cloud on title, there was neither allegation nor proof of the spoliation of the broker's power of attorney after it was executed, a decree based on a finding that such power had been changed in a material part was unsustainable.

5. ALTERATION OF INSTRUMENTS—ERASURES.

Where an erasure and interlineation appeared in a power of attorney, it will be presumed that the alteration was incident to the making of the contract and was immaterial to its validity, in the absence of proof or other indicia of spoliation or fraudulent intent.

6. BROKERS — POWERS — EXECUTION — FINDINGS—EVIDENCE.

In a suit to set aside a contract for the sale of land made by a broker, evidence held insufficient to sustain a finding that plaintiffs did not execute two separate powers of attorney authorizing the broker to separately sell certain tracts of land belonging to plaintiffs.

7. CANCELLATION OF INSTRUMENTS—FRAUD— MUTUAL MISTAKE—BURDEN OF PROOF.

Where, in a suit to set aside as a cloud on title a contract for the sale of land made by plaintiffs' broker, plaintiffs claimed that the broker was only authorized to sell all their land or none, and that the powers of attorney did not contain the entire contract, while defendants demanded specific performance, and the broker prayed for commissions, the burden was on defendants to show the execution of such powers of attorney, after which the burden shifted to plaintiffs to show that by accident, fraud, or mutual mistake a material part of the agreement was omitted.

8. PRINCIPAL AND AGENT—POWERS—REVOCATION.

The donor of a power not coupled with an interest in the subject-matter itself may revoke the same within the time during which the power provided that it was irrevocable; the donor being only subject to a suit for damages by the donee.

9. BROKERS — POWERS — REVOCATION — EVIDENCE.

In a suit to set aside a sale of real estate consummated by plaintiffs' broker, evidence held insufficient to sustain a finding that plaintiffs had revoked the broker's power of sale prior to the making of the contract.

10. SAME—CONTRACT — TERMS — CONFORMITY TO POWER.

Where a broker's power to sell land authorized him to sell "the following described real estate * * * and to make contract therefor" in the name of the owners, "subject to the conditions" thereafter named, and further declared that the sellers were "to accept all or not less than $2,000 cash and the balance March 1, 1903," as of the date the purchasers took possession, a contract allowing the buyer a rebate of 6 per cent. on the advance payment from the date of the payment to March 1, 1903, binding the seller to pay $20 on an examination of the abstract of title, and making time of the essence of the contract, was not objectionable as containing provisions not within the power conferred.

11. APPEAL—THEORY OF CAUSE.

A suit in equity to set aside a contract for the sale of real estate must be tried on appeal on the same theory on which it was heard in the trial court.

12. SPECIFIC PERFORMANCE — UNCONSCIONABLE CONTRACT.

Where a contract for the sale of certain land provided for payment at the rate of $44 per acre, part cash and the balance on delivery of possession on a specified date, but plaintiffs refused to complete the contract for the substantial reason that they had been offered an advance of $6 per acre, the contract was not so hard or unconscionable that equity would refuse to decree specific performance.

13. EQUITY—QUIETING TITLE—MULTIPLICITY OF SUITS.

Where, in a suit to set aside a contract for the conveyance of land as a cloud on plaintiffs' title, plaintiffs joined the broker by whom the contract was made, and joined issue on his claim of the validity of the contract and on his right to compensation, on the sustaining of the contract, he was entitled to a decree for commissions to avoid a multiplicity of suits.

Appeal from Circuit Court, Chariton County; Jno. P. Butler, Judge.

Suit by R. B. Kilpatrick and others against Walter L. Wiley and others to set aside a contract for the conveyance of certain real estate as a cloud on plaintiff's title in which defendants filed a cross-bill for specific performance. Sidney P. Allen filed a cross-bill for commissions in the sale of the land. From a decree vacating the contract, both parties appeal. Reversed and remanded.

C. B. Crawley, Crawley & West, and J. A. Collet, for plaintiffs. Ed. E. Yates and Perry S. Rader, for defendants.

LAMM, J.

Lewis Lisle and R. B. Kilpatrick on February 15, 1902, owned 480¾ acres of land in section 2, township 55, range 21, in Chariton county, Mo., described as "52 a. N. part of N. W. 4 lying west of the Wabash railroad and all of Sec. 2 lying east of said Wabash R. R." These lands are called "uplands." At that same time Lisle and Kilpatrick owned 740 acres additional, in two parcels some distance apart—one cornering with their said uplands. These latter lands are called "bottom lands." Sidney P. Allen was a real estate agent residing in Kansas City, Mo., and had men employed in and about said business—one of them, Bryan; another, Englehart. Bryan and Englehart appear throughout the record as representatives of Allen. Walter L. Wiley and Charles L. Dungan reside at Peoria, Ill., and claim to have purchased said uplands through Allen, acting as agent for Lisle and Kilpatrick. On the 16th day of June, 1902, there appeared of record in the office of the recorder of deeds of Chariton county a written agreement purporting to contract to sell said uplands to Wiley and Dungan for the sum of $21,120 ($44 per acre)—$3,000 paid down, the balance to be paid on or before March 1, 1903, at which time a conveyance was to be made by Lisle and Kilpatrick to Wiley and Dungan. This contract (hereinafter to be set forth) purports to be executed by Lisle and Kilpatrick through Allen, agent, and was acknowledged by Allen as such agent on the 9th day of June, 1902, in Kansas City, Mo., and by Wiley and Dungan in Peoria, Ill., on the 12th day of June, 1902. To the February term, 1903, of the circuit court of Chariton county, Lisle and Kilpatrick lodged their bill in equity against Wiley, Dungan, and Allen to have said recorded contract adjudged a cloud upon their title and removed. They further sought to recover damages in the sum of $5,000. The gist of the matter appears in the following paragraphs of the bill:

"That on the said 16th day of June, 1902, the defendants, wrongfully designing, contriving, and confederating together to wrong and injure the plaintiffs and to prevent plaintiffs from selling and conveying said lands, wrongfully, maliciously, and without the authority or consent of said plaintiffs, or of either of said plaintiffs, caused to be filed in the office of the recorder of deeds within and for said Chariton county, and there recorded in Record Book 75, at pages 49, 50, and 51, a certain instrument of writing, dated the 9th day of April, 1902, and regularly acknowledged by all said defendants, purporting to be a contract by and between `R. B. Kilpatrick and Lewis Lisle, by Sidney P. Allen, their agent,' as parties of the first part, and said Walter L. Wiley and Charles L. Dungan, as parties of the second part, whereby said Kilpatrick and Lisle appear and purport to contract and become bound to sell and convey the above-described lands to said Wiley and Dungan at and for the price and sum of $21,120, and to deliver possession of said lands to said Wiley and Dungan on the 1st day of March, 1903; said pretended contract further reciting the payment of $3,000 of said supposed purchase price to said Allen, as agent for plaintiffs, at the time of the signing of said contract, and purporting to require the payment of the remainder of said pretended purchase price and the delivery of a warranty deed for said lands on the 1st day of March, 1903.

"Plaintiffs further state that said Allen executed said paper without any right or authority whatever from plaintiffs, or either of them, as his codefendants well knew and understood at the time of executing and accepting said pretended contract; that said pretended contract is not and never was the contract or agreement of said plaintiffs or either of them; and that said pretended contract and the recording thereof constitute a cloud upon plaintiffs' title, and were wrongfully designed and contrived by said defendants to prevent, and have in fact prevented, plaintiffs from selling their said lands, to plaintiffs' damage in the sum of $5,000."

Wiley and Dungan appeared, and by answer admitted certain averments, denied others, and by way of cross-bill alleged facts which, if true, entitled them to have said contract specifically enforced, with damages in rents and profits; and they prayed a decree accordingly. They furthermore pleaded a tender in accordance with their alleged contract of purchase, and set forth facts which, if true, entitle them to...