Kirby Balke

• Decision Date: 25 November 1924
• Docket Number: No. 24103.,24103.
• Citation: 266 S.W. 704
• Parties: KIRBY v. BALKE.
• Court: Missouri Supreme Court

266 S.W. 704

KIRBY v. BALKE.

No. 24103.

Supreme Court of Missouri, Division No. 1.

November 25, 1924.

Motion for Rehearing Denied December 19, 1924.

Appeal from Circuit Court, Polk County; C. H. Skinker, Judge. "

Suit by G. R. Kirby against Ben A. Balke. Judgment for plaintiff, and defendant appeals. Affirmed.

L. Cunningham, of Bolivar, and W. S. Jackson, of Warsaw, for appellant.

Henry P. Lay, of Warsaw, for respondent.

LINDSAY, C.

The suit of plaintiff is for specific performance in part of a contract, whereby plaintiff sold certain real estate to defendant, and defendant sold to plaintiff certain real estate, all at agreed prices, and defendant also sold to plaintiff an interest in certain personal property, and plaintiff also asked judgment for damages alleged to have been sustained by him through defendant's breach of the contract, and through certain acts done or suffered to be done by defendant, rendering complete performance impossible. The case was tried upon the fifth count of the amended petition, an answer of the defendant, and a reply by plaintiff, which set up certain new matter based upon occurrences subsequent to the filing of the petition. The suit was brought in Benton county, and a change of venue taken to Polk county. The salient facts as to the terms of the contract, set out in the petition, may be summarized:

On July 2, 1920, plaintiff and defendant made a contract, whereby each bargained and sold to the other certain property. Plaintiff bargained and sold to defendant a farm of 198.40 acres of land in Benton county, subject to an incumbrance for $5,500, and the interest thereon after July 1, 1920, at the price of $12,000, agreeing to give defendant possession of all that portion of the farm from which the crops had been gathered on September 1, 1920, and the remainder as the crops were gathered; the plaintiff reserving all crops. The defendant bargained and sold to plaintiff, at the price of $9,000, a certain lot and brick building, known as the Ryan building, in the city of Warsaw, subject to an incumbrance of $5,000, in favor of Warsaw Building & Loan Association, and agreed to give plaintiff possession in 10 days; the plaintiff to receive all rents after, July 1, 1920, and to make the July payment falling due July 1, 1920, to the building and loan association. The defendant also sold to the plaintiff the defendant's onehalf interest in the stock of goods and fixtures contained in said Ryan building; the plaintiff agreeing to pay to defendant the cost price therefor, deducting, however, the amount of cost price that remained unpaid. The defendant also bargained and sold to plaintiff certain real estate situated in Fristoe, in Benton county, at the price of $3,500, subject to an incumbrance of $2,000, and interest after July 1, 1920, the plaintiff to receive the rents after said date. Good and sufficient warranty deeds were to be made, respectively, by the parties, but subject to the taxes of 1920.

The petition set forth the agreements made in the contract, and subsequent thereto, as to furnishing abstracts of title, upon which no issue arises, and set forth the failure and refusal of defendant to comply with the contract, and plaintiff's willingness, ability, and offer to do so. The petition then alleged that, since the date of the contract, $500 of the principal, and all of the interest, amounting in all to $636.33, under the incumbrance upon plaintiff's said farm, had become due, and had been paid by plaintiff; that since the date of the contract defendant had continued to sell the goods mentioned in the contract, so that the same were changed, and that the other half interest therein had been sold, and that the situation of the goods and fixtures has been so changed as to be of little value to plaintiff. The petition prayed for specific performance of the agreement so far as it could be done, that plaintiff recover the sum of $6,500, the net price of his farm under the contract, with interest thereon, also the said sum of $636.33, and also the further sum of $1,000, for breach of the remainder of the contract, and for general relief. After the overruling of defendant's demurrer, alleging that the petition improperly united several causes of action, and united causes of action inconsistent and repugnant, and failed to state facts sufficient to entitle plaintiff to any equitable relief, and after the overruling of defendant's motion to make the petition more definite and certain, defendant filed his answer, admitting the execution of the contract sued upon, but denying all other allegations of the petition, and for further defense alleged that he was induced to enter into the contract through false and fraudulent representations of plaintiff, and of plaintiff's agent, as to the value, productiveness, number of acres in cultivation, and kind of soil of plaintiff's farm; that upon learning the true facts defendant rescinded the contract, and defendant's wife refused to execute any deed of conveyance to plaintiff; that the property of defendant described in the contract was purchased with the joint means of defendant and his wife, and acquired through their joint efforts, and that defendant's wife was the owner of an interest therein of the value and amount of $1,725, and dower; that the value of plaintiff's land as stated in said contract was inflated in the amount of at least $4,000. Upon these grounds defendant asked cancellation of the contract.

The second count of defendant's answer was a counterclaim, wherein defendant alleged that when plaintiff filed this suit he also filed a lis pendens; that thereby defendant's said property was rendered unsalable; that the incumbrance upon defendant's property in Fristoe became due in September, 1920; that after an extension to January 1, 1921, said incumbrance was on February 4, 1921, foreclosed, and the Fristoe property sold under said incumbrance, at the price of $2,650, which was $850 less than its value; that said sale and foreclosure came to pass because the filing of the lis pendens by plaintiff clouded defendant's title to his property, prevented him from securing an extension of said loan and from borrowing money on any of his property to discharge it, whereby defendant was damaged in said sum of $850, for which he asked judgment. The court sustained plaintiff's demurrer to defendant's said counterclaim. The plaintiff in reply pleaded the sale of the Fristoe property under foreclosure, and the further change in the character and situation of the goods and fixtures, whereby specific performance as to those properties was no longer possible. The plaintiff further alleged that, since the institution of the suit, rents to the amount of $618 had accrued to defendant upon the Ryan building in Warsaw. The plaintiff asked for enforcement and performance of the contract so far as was then possible; that title to the Warsaw property be divested out of defendant and vested in plaintiff; that defendant should receive the deed to plaintiff's said farm; and that there be an accounting of rents accrued to defendant, of the sum paid by plaintiff on the incumbrance upon said farm, and of any sums paid by defendant upon the Building & Loan incumbrance on the Warsaw property. The plaintiff asked for judgment in the sum of $3,762.93, as the sum due to him under the terms of the contract, less such sums as it might be found the defendant had paid upon the Building & Loan incumbrance, and for general relief.

The court in its decree made its findings under the evidence, and found that the contract had been fairly entered into, and was not procured by any fraud of plaintiff; that the plaintiff within the time required had tendered full performance, and was at all times willing, ready, and able to perform, had offered to do so, had tendered performance in court; and that defendant had wholly failed to do and perform the things required. The court found the sums paid by defendant upon the incumbrance on his farm to be $636.33, and allowed $10 as interest thereon; the amount of rent accrued to defendant on the Warsaw property to be $616, and the amount paid by defendant upon the incumbrance on that property to be $446.60 and, adjusting said sums, found there was due from defendant to plaintiff the sum of $815.73. The court further found that defendant had permitted the Fristoe property to be sold, and had permitted the sale and change in nature of the goods and fixtures, so that said properties could not be conveyed; found that under the contract the agreed value of plaintiff's farm exceeded the agreed value of defendant's Warsaw property in the sum of $2,500; found that plaintiff was entitled to specific performance so far as the same was possible; and that plaintiff was entitled to a judgment in the sum of $3,315.73, which should be a lien upon the farm, to be conveyed by plaintiff to defendant.

The court thereupon decreed that the title to the Warsaw property be divested out of defendant and vested in plaintiff, subject to the Building & Loan incumbrance, and subject to the inchoate right of dower of defendant's wife, and that the plaintiff's title in his said farm be divested from plaintiff and vested in defendant, subject to the incumbrance remaining thereon, and plaintiff's deed thereto be deposited with the clerk for the use of defendant. The court further decreed that plaintiff recover of defendant the said sum of $3,315.73; the same to be a lien upon' the said farm. Pending disposition of defendant's motion for a new trial, the plaintiff remitted $500 of the judgment for $3,315.73.

It is urged by respondent that defendant's appeal should be dismissed, because appellant's brief does not contain "a fair and concise statement of the facts of the case," as required by rule 15 of this court. Longan v. Kansas City Rys. Co., 299 Mo. 561, 253 S. W. 758, is cited. Section 1511, R. S. 1919, is also applicable. Since rule 15 is reported in...