Knisely v. Leathe

• Citation: 256 Mo. 341,166 S.W. 257
• Decision Date: 03 January 1914
• Docket Number: No. 16,411.,16,411.
• Parties: KNISELY v. LEATHE.
• Court: Missouri Supreme Court

166 S.W. 257

256 Mo. 341

KNISELY v. LEATHE.

No. 16,411.

Supreme Court of Missouri, Division No. 1.

January 3, 1914.

Rehearing Denied March 3, 1914.

Motion to Transfer to Court in Banc Denied April 2, 1914.

1. APPEAL AND ERROR (§ 544)—PLEADING— MOTIONS—DEMURRER—REVIEW—RECORD.

Where a motion to strike out parts of a petition pleading the institution, pendency, and dismissal of a prior suit to avoid the bar of limitations, and a demurrer to the remainder of the petition, based on the two and five year statute of limitations, were filed on the same day and considered together, and the decision on both was included in a single entry, the action of the court in sustaining the demurrer and the motion to strike were reviewable on the record proper; and neither the motion nor the action of the court in sustaining it need be preserved by exception, followed by motion for new trial, in which the same matter was again made the subject of complaint and exception.

2. LIMITATION OF ACTIONS (§ 180)—PLEADING —DEMURRER.

One seeking by demurrer to take advantage of the statute of limitations must plead the statute on which he relies.

3. LIMITATION OF ACTIONS (§ 24)—STATUTES — CONSTRUCTION — ACTION FOUNDED ON WRITING.

Rev. St. 1899, § 4272, limiting the time within which to sue on any writing for the payment of money or property, includes every action for money or property founded on a writing, and the contingency on which the payment or delivery is to be made is immaterial, and, where an action is brought by an administrator against an executor on the theory that it was the duty of testator, under a contract in writing with intestate, pleaded in the petition, to carry out the contract and pay the sum sued for, the action is founded on an instrument in writing, within the statute, and it is immaterial whether a suit is in debt for the amount due on the contract or in covenant for unliquidated damages for breach thereof.

4. LIMITATION OF ACTIONS (§ 119)—ALLOWANCE OF CLAIMS—EXHIBITION OF DEMANDS —LIMITATIONS.

Under Rev. St. 1909, §§ 190-195, providing for the classification of demands against decedents' estates, and declaring that all demands not exhibited in two years shall be barred, but suits pending against decedent at the time of his death shall be considered as demands legally exhibited from the time of revivor, and all actions begun against an executor or administrator shall be considered demands legally exhibited against the estate from the time of the service of the original process, etc., service of process in a suit against an executor within two years after the granting of letters testamentary stops the running of limitations, provided the cause of action was not barred by the general statute of limitations at that time, and the cause of action could then be kept alive or new actions brought during the period of limitation prescribed by the general statute.

5. EXECUTORS AND ADMINISTRATORS (§ 437)— DISMISSAL OF ACTION—SECOND ACTION.

Though a suit against an executrix, brought within the period of limitations prescribed by the general and special statutes, was dismissed, the suit was an exhibition of the claim, which removed the bar of the special statute, leaving the claim subject thereafter only to the general statute of limitations.

6. LIMITATION OF ACTIONS (§ 24)—DAMAGES FOR BREACH OF CONTRACT—PETITION.

Where the petition, in an action by an administratrix against an executrix, alleged that testator contracted in writing to convey real estate to a third person for a specified consideration, and agreed, in the event of a sale, to pay the intestate a specified sum for services rendered, out of the price, and that the testator failed to perform his contract of sale, and that, by reason thereof, his estate was indebted to the administratrix to the amount of the agreed compensation, the cause of action was based on a contract for the money demanded within the ten-year statute of limitations. Rev. St. 1899, § 4272.

7. BROKERS (§ 52) — COMPENSATION — WHEN EARNED.

Where a broker employed to procure a purchaser procures a purchaser who enters into a written contract with the owner to purchase, the owner becomes at once liable to the broker, in the absence of any special provision to the contrary.

8. BROKERS (§ 52) — COMPENSATION — WHEN EARNED.

Where a broker procured a purchaser, who entered into a contract in writing with the owner, which stipulated that the owner agreed to sell to the purchaser described property for a specified price, and to deliver a warranty deed and abstracts of title showing and conveying good title, and that the purchaser should be the sole judge as to whether the owner had a good title, and that the purchaser should have a reasonable time before making the first payment of the price to have the lands surveyed, the broker had earned his commissions, in the absence of some express agreement in his contract of employment to the contrary.

9. BROKERS (§ 63) — COMPENSATION — WHEN EARNED.

Where a contract employing a broker to procure a purchaser of real estate recited that, in the event of a sale of the property, the broker, for services rendered, should receive a specified sum, paid out of the price, the payment to be made in installments, as payments of the price were made, the broker, procuring a purchaser who contracted with the owner to purchase, was entitled to compensation, though the owner refused to carry out the contract.

Appeal from St. Louis Circuit Court; Chas. Claflin Allen, Judge.

Action by Elizabeth C. Knisely, administratrix of Charles Knisely, deceased, against Grace A. Leathe, executrix of Samuel H Leathe, deceased. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This suit was instituted March 10, 1909, by filing in the clerk's office of the circuit court the original petition, which stated that a copy of the written contract sued on was filed with it as an exhibit. Summons issued next day, returnable to the April term, and was returned not found April 5th. Alias summons issued on the same date, returnable to the June term, and was returned served on the defendant executrix April 27, 1909. The defendant appeared and answered during the April term, and the cause proceeded so that at the April term, 1910, and on June 4th, the plaintiff, with leave of court, filed her third amended petition, which, omitting venue and signature, is in words and figures following:

"Elizabeth C. Knisely, Administratrix of the Estate of Charles H. Knisely, Deceased, Plaintiff, v. Grace A. Leathe, Executrix of the Estate of Samuel H. Leathe, Deceased, Defendant.

"Plaintiff, for third amended petition, filed by leave of court, states that Charles H. Knisely died in the city of St. Louis, state of Missouri, on the 17th day of July, 1904, intestate; that thereafter, on the 30th day of August, 1904, she was duly appointed by the probate court of the city of St. Louis, Mo., administratrix of the estate of said Charles H. Knisely, deceased, gave bond for the faithful discharge of her duties, qualified and is now acting as such by virtue of said appointment.

"Plaintiff further states that said Samuel H. Leathe died in the city of St. Louis, state of Missouri, on the 3d day of March, 1907, testate; that the last will and testament of the said Samuel H. Leathe was duly admitted to probate by the probate court of the city of St. Louis, Mo., on the 19th day of March, 1907; that by the terms of said will the defendant, Grace A. Leathe (who is the widow of said Samuel H. Leathe), was named as executrix without bond, and letters testamentary dated March 20, 1907, were issued to her by said court, and she then qualified and entered upon the discharge of her duties as such executrix, and, within 30 days after said letters were granted to her, she published notice thereof for three weeks, as required by the provisions of section 86 of the Revised Statutes of Missouri 1899.

"Plaintiff, for her cause of action against defendant, states that on the 25th day of October, 1900, said Samuel H. Leathe and one Charles C. Wolcott made and entered into a contract in writing of that date (a copy of which is herewith filed and marked `Exhibit A'), wherein and whereby the said Samuel H. Leathe, in consideration of the sum of $1 to him paid by said Wolcott, agreed to and did sell to the said Wolcott, for the sum of $850,000, certain lands situate in the counties of St. Francois and Madison, in the state of Missouri, containing 37,514 acres, and being known as the Mine La Motte and other lands of the said Samuel H. Leathe, particularly described therein, together with all machinery, operating plant, and personal property then and thereon belonging to the said Samuel H. Leathe; that in and by said contract said sum of $850,000 was made payable as follows: $300,000 in cash, as soon as the report of the engineer of said Wolcott upon said lands was completed, and abstracts of title to said property examined by the attorneys of said Wolcott and deed delivered and possession of said property given to said Wolcott, one-third of the remainder on or before one year from the date of delivery of title and possession of said property to him, and one third in two years, and one-third in three years thereafter; that in and by said contract the said Samuel H. Leathe agreed to execute and deliver a warranty deed to the said Wolcott of said property, with abstracts of title showing and conveying a good title to all of said real estate; and it was further especially agreed that said grantee, Wolcott, or his attorneys, should be the sole judges as to whether such abstracts and facts in relation thereto showed a good and indefeasible title to said lands in said grantor, Samuel H. Leathe, said deferred payments to be secured by a trust deed on said property, and notes to bear interest at the rate of 6 per cent. per annum from their date, and that said Wolcott should have a reasonable time before making said...