Laclede Laundry Co. v. Freudenstein

• Decision Date: 02 December 1913
• Citation: 179 Mo. App. 175,161 S.W. 593
• Parties: LACLEDE LAUNDRY CO. v. FREUDENSTEIN et al.
• Court: Missouri Court of Appeals

161 S.W. 593

179 Mo. App. 175

LACLEDE LAUNDRY CO. v. FREUDENSTEIN et al.

St. Louis Court of Appeals. Missouri.

December 2, 1913.

EVIDENCE (§ 441)—PAROL EVIDENCE TO VARY WRITING — DEEDS — "GRANT, BARGAIN, AND SELL."

Where the words "grant, bargain, and sell" in a statutory general warranty deed were unrestrained by any express terms contained in the deed, and hence under the express provisions of Rev. St. 1909, § 2793, were to be construed as a covenant against incumbrances, it could not be shown by parol evidence that in addition to the consideration recited in the deed the grantee agreed as part of the consideration to assume and pay taxes which were then a lien on the land, since, while ordinarily parol evidence is admissible to explain, vary, or even contradict the recited consideration, it is not so admissible if to admit it involves an attack upon the covenants of the deed, and Rev. St. 1909, § 1974, providing that whenever a specialty or other written contract for the payment of money or delivery of property, or the performance of a duty, shall be the foundation of an action or defense in whole or in part, a want or failure in whole or in part of the consideration thereof may be proved, does not apply to such a case.

Appeal from St. Louis Circuit Court; Daniel D. Fisher, Judge.

Action by the Laclede Laundry Company against Henry W. Freudenstein and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.

Wilfley, McIntyre & Nardin, of St. Louis, for appellant. John W. Benstein, of St. Louis, for respondents.

REYNOLDS, P. J.

This is an action on the covenants of warranty in a deed, to recover $122.87 and interest, on account of city, school and state taxes for the year 1909. Plaintiff is grantee in the deed, defendants are grantors. The deed is in the usual statutory form and "grants, bargains, and sells, conveys and confirms," the property to plaintiff, defendants "hereby covenanting that they, their heirs and legal representatives will warrant and defend the title to the said premises unto the said part of the second part and unto its successors and assigns forever, against the lawful claims and demands of all persons whomsoever." It is dated January 14th, 1909, and was then delivered. That the taxes were a lien upon the real estate at the time of the execution and delivery of the deed, although not then due, is conceded, it being admitted that plaintiff had paid them and interest to discharge the lien, and that while plaintiff had demanded repayment thereof from defendants, this demand was refused. The deed recites $12,000 as the consideration, the receipt of which is acknowledged.

By their answer defendants set up that the $12,000 stated in the deed was not the real consideration, but that it had been agreed between plaintiff and defendants before and at the time of the execution of the deed and its delivery to plaintiff, that plaintiff assumed and would pay these taxes as part of the consideration of the purchase of the property.

There was a general denial of this by reply. Trial to a jury.

Evidence was offered by defendants tending to prove that such an agreement had been made between the parties by parol immediately before and at the time of the execution and delivery of the deed, and it was admitted by the court over the objection and exception of plaintiff.

The court refused an instruction asked by plaintiff, who duly preserved exceptions, to the effect that under the law and the evidence the verdict of the jury should be for the plaintiff. At the request of defendants the court instructed the jury to the effect that if they found from the evidence that at the time of the sale and conveyance of the property described, it was understood and agreed between plaintiff and defendants that plaintiff assumed and agreed to pay the taxes assessed against the property for the year 1909 as part consideration of the purchase price of the property, their verdict should be for defendants. This was duly excepted to by plaintiff.

The jury returned a verdict in favor of defendants, from which, after interposing a motion for new trial and excepting to that being overruled, plaintiff has duly perfected its appeal to this court.

There is but a single question for determination in this cause, namely, the correctness of the action of the trial court in admitting parol evidence of the alleged agreement between the parties, made at or immediately prior to the execution and delivery of the deed, that plaintiff, in addition to the consideration named in the deed had as part of the consideration, verbally agreed to pay the taxes for the year 1909, those taxes being then a lien on the property. The contention of learned counsel for appellant, while conceding that it is admissible to show the real consideration for the deed, so long as it affects only the consideration, is, that such evidence is not admissible if it has the effect of contradicting the warranty in the deed itself, and it is claimed that such is the effect here. It appears by the abstract of the proceedings at the trial that this evidence was admitted by the learned trial judge on the theory that where there are contemporaneous verbal agreements entered into, one may modify the other; under this theory he held that he would allow the defendants to show, if they could, what the real consideration was. "That," said the court, "does not destroy the deed. It does not affect the validity of the deed." It was under this view of the law that the instruction asked by defendants and above set out was given and that asked by plaintiff refused.

While in the earlier cases the courts, English and American, took the view that the rule of evidence, that a written instrument could not be varied by parol, applied to the consideration clause as well as to other portions of the deed, the later and American view now almost universally adopted, certainly adopted in our state, to give it in its broadest terms, is, that the recitals of a deed as to the consideration, are not a part of the contract, and parol evidence is admissible to explain, vary or even contradict them. In the great majority of cases, however, in which the rule has been stated so broadly, the purpose of introducing the evidence was not to invalidate the deed as a conveyance or to annul its covenants. Where the introduction of the evidence will have that effect, the general rule is that the evidence is not admissible. We take the above substantially from notes to the case of Shehy v. Cunningham, 81 Ohio St. 289, 90 N. E. 805, the note being on page 1195 of 25 L. R. A. (N. S.). The first part of this paragraph is credited by the annotator to 6 Am. & Eng. Ency. of Law (2d Ed.) p. 767. Reading further in this volume of the American & English Enclyopedia of Law, at page 775, following the discussion of the admissibility of evidence to vary the consideration expressed in the deed or written contract, when the statement of the consideration is merely the recital of a fact, it is said: "When, however, the statement of the consideration leaves the field of mere recital and enters that of contract, thereby creating and attesting rights, as shown by the intention of the parties to be gathered from the instrument, it is no longer open to contradiction by extrinsic evidence." Jackson v. Chicago, St. Paul & Kansas City R. R. Co., 54 Mo. App. 636, a decision of the Kansas City Court of Appeals, the opinion by Judge Ellison, is cited and quoted from as one showing the difference between the statement of a consideration in a deed as a mere recital of a fact and as a contractual stipulation.

Considering the admission of parol or extrinsic evidence to vary deeds and written contracts, the law is thus summarized by accepted authority: "Where a writing, although in the form of a receipt, also embodies the elements of a contract, it is, in so far as it expressed the contract or is contractual in its nature, subject to the same rules as any other contract, and is not open to contradiction by parol; and of course the mere fact that a contract, as part of its terms, acknowledges the receipt of certain money or property does not render the writing a mere receipt." 17 Cyc. p. 632, par. III.

The same authority further says, pars. f and g, p. 659: "That the consideration to be shown by the parol evidence must be consistent with that stated in the writing, otherwise the evidence cannot be admitted;" and that "where the effect of parol evidence contradicting the consideration expressed in the instrument or showing the true consideration to be different therefrom, would be to change or defeat the legal operation and effect of the instrument, or to add new matter to an agreement complete upon its face, the evidence is not admissible; for in such case it comes within the rule which forbids the introduction of parol evidence to vary, contradict, or defeat a written instrument and not within the exception to that rule that parol evidence is admissible for the purpose of contradicting or showing that the true consideration is other and different from that expressed in the writing."

Recurring to Shehy v. Cunningham, supra, the decision a late one, handed down December 21st, 1909, we find the question very fully discussed. The point in decision is compactly stated in the syllabus thus: "The consideration clause in a deed of conveyance is conclusive for the purpose of giving effect to the operative words of the deed, but for every other purpose it is open to explanation by parol...