Knisely v. Leathe.

• Decision Date: 01 June 1915
• Docket Number: No. 18358.,18358.
• Citation: 178 S.W. 453
• Parties: KNISELY v. LEATHE
• Court: Missouri Supreme Court

178 S.W. 453

KNISELY v. LEATHE

No. 18358.

Supreme Court of Missouri.

June 1, 1915.

Rehearing Denied. June 29, 1915.

In Banc. Appeal from St. Louis Circuit Court; Eugene McQuillin, Judge.

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

Transferred from Division 1 to the court en banc on dissenting opinions.

See, also, 256 Mo. 341, 166 S. W. 257.

E. P. Johnson, Edward C. Crow, and Morton Jourdan, all of St. Louis, and William M. Williams, of Booneville, for appellant. George W. Lubke, George W. Lubke, Jr., and Nagel & Kirby, all of St. Louis, and R. B. Ruff, of Marshall, for respondent.

GRAVES, J.

This case reaches this court on dissention of opinion from Division 1. It has been concluded that whilst our learned commissioner in the divisional opinion has stated the facts of the case correctly, yet in some matters of law he has gone beyond and contrary to the rulings of this court when the case was here on previous appeal, and for this reason it has been thought best to reformulate the views of the court. Hence this opinion in lieu of what has been written on the present appeal.

This is the second appeal in this case. It came here first upon a demurrer to the petition. Knisely v. Leathe, 256 Mo. 341, 166 S. W. 257. At that time one of the leading issues involved and discussed was the statutes of limitation. Our learned commissioner held that on that ground the demurrer was erroneously sustained, and reversed and remanded the cause. The court was not satisfied with this disposition of the case The court agreed with the commissioner, so far as he went, but concluded that there were other issues raised by the demurrer which should be disposed of, in view of the fact that the case was being returned for a trial nisi. Among these issues were the character of the suit (whether one sounding in damages or one on contract), and further the character of the instrument sued upon, if it be an action in contract. By separate concurring opinion the court, by a majority thereof, expressed its views upon the petition and the instrument sued upon, and the cause was reversed and remanded to be retried in accordance with the views in such opinion expressed. The cause was retried, but it would seem that the circuit court in some instances misjudged the views of this court. Upon this trial the jury, under instructions at variance with the law of the case as expressed in the former appeal, returned a verdict for the defendant, and the plaintiff has again appealed.

When the case was here before we very clearly held: (1) That the action was one upon a contract to pay money, and not a suit for damage. 256 Mo. loc. cit. 368-371, 166 S. W. 257. (2) That the paper writing between Leathe and Wolcott was a contract of sale of property between such parties. 256 Mo. loc. cit. 375, 166 S. W. 257. (3) That when Leathe entered into the contract of sale with Wolcott his liability to Knisely became fixed, unless he had with Knisely some other contract outside of the one sued upon by Knisely's administrator (256 Mo. loc. cit. 375, 376, 166 S. W. 257), or unless the Knisely-Leathe contract or the Wolcott-Leathe contract was procured by fraud (256 Mo. loc. cit. 377, 166 S. W. 257). (4) That where an agent for his principal procures a purchaser for property, and the principal in his own name enters into a contract of sale with such purchaser, such principal thereafter becomes liable for the agent's agreed commission, although said purchaser may not be financially able to complete the purchase. 256 Mo. loc. cit. 372-374, 166 S. W. 257, and cases cited. (5) That Leathe could not defeat his liability to Knisely, under the Knisely-Leathe contract, by failing or refusing to enforce or comply with the terms of the Wolcott-Leathe contract.

Both contracts are fully set out in the original opinion in 256 Mo. but for ready reference had perhaps better be recopied here. The contract sued upon by the plaintiff in this case reads:

"In the event of the sale of the Mine La Motte estate and additional lands belonging to me (described in contract with Charles C. Wolcott of even date herewith) amounting in total to 37,500 acres, to or through Charles C. Wolcott of New York or his assigns, for services rendered, the receipt and value of which are hereby acknowledged, I hereby promise and agree to pay to Charles H. Knisely, of St. Louis, Missouri, trustee, or his order, the sum of one hundred and seven thousand five hundred ($107,500) dollars out of the purchase price of $850,000; the payment of said $107,-500 to be made by me to said Charles H. Knisely, trustee, or his order, in four payments, the first one of $37,941.19, and each of the three additional payments of $23,186.27 each, at such time and place as I receive the principal payment for said real estate as per contract of sale entered into by me with Charles C. Wolcott of even date herewith; deferred payments of the amount above written to bear six per cent. interest per annum, the same as the original principal sum.

"Done at St. Louis, Mo., this twenty-fifth day of October, A. D. 1900.

"S. H. Leathe."

Omitting the description of the property, the contract between Leathe and Wolcott read:

"In consideration of one dollar, receipt thereof is hereby acknowledged, I have this day agreed of sell to Charles C. Wolcott, party of the second part, all of the following described land, situated in the counties of St. Francois and Madison, in the state of Missouri, containing thirty-seven thousand (37,514) five hundred and fourteen acres, described as follows: * * * together with all machinery, operating plant and personal property now thereon, belonging to said vendor, for the sum of eight hundred and fifty thousand ($850,-000.00) dollars, this amount payable as follows: Three hundred thousand dollars in cash as soon as engineers' report is completed upon the property and abstracts of title are examined by the attorneys of the party of the second part, deed delivered and possession given; one-third of remainder on or before one year from date of delivery of title and possession, one-third in two years, and one-third in three years.

"Said party of the first part agrees to execute and deliver a warranty deed, with abstracts of title, showing and conveying good title to all the real estate above described.

"It is especially agreed that said grantee or his attorneys shall be the sole judge as to whether such abstracts and facts in relation thereto show a good and indefeasible title to said lands in grantor herein mentioned. Deferred payments to be secured by a trust deed on the property, and notes to bear interest at the rate of six per cent (6 per cent) per annum from their date, payable on or before.

"It is further agreed that the party of the second part shall have a reasonable time before making first payment to have lands surveyed and maps made of same, also to have their engineer make a full and complete examination and report upon the property, such examination to begin not later than December 1, 1900.

"A failure by the party of the second part to comply with the above contract or to make such payments as they come due, shall make this contract null and void.

"Witness our hands this 25th day of October, 1900.

"[10-cent United States revenue stamp affixed and canceled.]

                                       "S. H. Leathe
                                       "Charles C. Wolcott."
                

When the case went back for new trial in the circuit court, the defendant filed answer and the plaintiff a reply. These pleadings and the evidence in the case are fairly set out by our learned commissioner in his opinion, and from that opinion I borrow the following facts:

"On the return of the cause to the circuit court, the defendant filed her answer which, in addition to a general denial, stated: That the defendant's testator, Samuel H. Leathe, was induced to sign a writing whereby he offered and agreed to sell to one Charles C. Wolcott for $850,000, `three hundred thousand dollars in cash so soon as an engineer's report upon said property was completed and abstracts of title to the property had been examined by attorneys of said Wolcott and deed for the property was delivered and possession given,' and the remaining $550,000 in three equal annual installments, with 6 per cent. interest, to be secured by deed of trust on said property. That `said Wolcott was to have a reasonable time before making said first payment to have said lands surveyed and maps thereof made and to have his engineer make a full examination and report upon said property, such examination to begin not later than December 1, 1900.' That his failure to comply with the requirements of said contract or to make said payments when due should make said contract null and void. That said writing was obtained from said Leathe by said Wolcott and other persons acting therein with and for him by fraud and deceit in this: That when said writing was entered into and obtained from said Loathe by said Wolcott, he, the said Wolcott, did not intend upon his part to perform the same or in good faith to become a real purchaser of said properties. That he did not at said time possess the means or ability to make said purchase, and knew he was unable to make said purchase for the want of the necessary means to do so. That he then had no fixed home or place of business, and was commonly known as a promoter of mining shares and like securities and properties. And defendant states further that the deceased, Samuel H. Leathe, received no consideration for said writing; that he was not paid the $1 recited therein, and that for the reasons hereinbefore stated as to the condition, character, and intentions of said Wolcott, his promises of said Wolcott contained in said writing had no value. And defendant stated...