Lanitz v. King
| Decision Date | 19 December 1887 |
| Citation | 6 S.W. 263,93 Mo. 513 |
| Parties | LANITZ v. KING. |
| Court | Missouri Supreme Court |
The plaintiff agreed to purchase certain lots of defendant. The purchase price was to be paid in two weeks, when defendant should give a warranty deed. Earnest money was paid, and it was agreed that, if the title was found to be imperfect, it should be refunded to plaintiff. Plaintiff was not satisfied with the title, and did not offer to comply with the terms of the contract within the two weeks. A year and a half afterwards he offered the money, and demanded his deed. Held that, according to the terms of the agreement, the plaintiff was in default, and could claim nothing thereunder.
2. SAME — PLEADING AND PROOF.
The plaintiff declared upon a written contract for the sale of land, wherein it was provided that, if he should pay the purchase price in two weeks, the defendant would execute a warranty deed, and, if the title was found to be bad, the money paid as earnest money should be refunded. He alleged his readiness to fulfill at all times, and a tender of the money. It appeared from the evidence on the trial that he had found the title bad, and so notified defendant, who said he would fix it; that 18 months afterwards he had made the alleged tender. Held that, under the allegations of his petition, the plaintiff could not show that, by the promise to fix the title, defendant waived the terms of payment in the original contract, and entered into a new agreement by which payment was deferred until the title was made good.
Appeal from St. Louis circuit court; AMOS M. THAYER, Judge.
Action for a breach of contract for the purchase of real estate, brought by George Lanitz against Charles E. King. Judgment was rendered for the defendant, and the plaintiff appealed to the court of appeals of St. Louis, whence the cause was transferred to this court.
T. K. Skinker, for plaintiff. G. D. Reynolds, for defendant.
Lanitz brought this suit against Charles E. King to recover damages for alleged breach of contract for the purchase of real estate. Plaintiff declares upon a written contract, and states that defendant executed the same by his authorized agent, Edgar Miller. The contract sued upon and read in evidence, omitting the description of the property, is as follows:
The petition further states that plaintiff has at all times been ready and willing to carry out the contract; that he tendered to defendant the balance of the purchase price, namely, $9,950, and demanded a deed; and that the defendant refuses to execute and deliver to him a deed to the property. The defendant answered, first, by way of a general denial, and, among other things, he states that the contract sued upon is not his act, and that Miller was not authorized by him to make the same, or any such a contract. In other defenses, he admits that there was a negotiation between him and the plaintiff, which resulted in a verbal agreement to the effect that, if the title was satisfactory to the plaintiff, then defendant would make a warranty deed, and plaintiff, would pay therefor $10,000, less $50 deposited with Miller, within two weeks from the twenty-fifth February, 1881. He alleges that plaintiff was not satisfied with the title, and refused to take the property, and that the plaintiff did not tender or offer to pay the purchase price within the two weeks, and that the option was verbal, and void by reason of the statute of frauds, and has been abandoned by both parties.
The evidence for the plaintiff tends to show that Miller, who was a real-estate agent, found the plaintiff, Lanitz, and took him to King, the defendant, and after some dickering they came to an agreement. Lanitz then offered King $50, but King told him to give it to Miller, who would give a receipt therefor. Lanitz and Miller then went to the latter's office, and Miller executed the receipt in question, which appears to express, in substance, the agreement of the parties. It appears that the property had descended from Willis King, and that the other heirs conveyed to the defendant in order that he might sell it for all of them; he being one of the heirs. Debts had been allowed in the probate court to the amount of $2,000 against the estate of Willis King, and, as those debts had not been paid, the property was liable to be taken in discharge of them. Plaintiff was not satisfied with the title, and there is evidence tending to show that King said he would have the debts settled. Miller and...
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...not recover because one contract was alleged in its petition and a modified and substituted contract was disclosed by the proof. Lanitz v. King, 93 Mo. 513; Taussig v. Southern Mill & Land Co., 124 Mo. App. 209; George Gifford Co. v. Willman, 173 S.W. 53, 187 Mo. App. 29; Ostrander v. Messm......
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...fact which the plaintiff, in order to recover, must prove, he must also allege, so that an issue can be made thereon. Lanitz v. King, 93 Mo. 513, 6 S. W. 263. Chitty says: "An averment signifies a positive statement of facts, in opposition to argument or inference." Volume 1, p. 351. In par......
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Missouri Finance Corp. v. Roos
...... contract was alleged in its petition and a modified and. substituted contract was disclosed by the proof. Lanitz. v. King, 93 Mo. 513; Taussig v. Southern Mill & Land. Co., 124 Mo.App. 209; George Gifford Co. v. Willman, 173 S.W. 53, 187 Mo.App. 29; ......
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Shohoney v. Quincy, Omaha & Kansas City Railroad Co.
...fact which the plaintiff in order to recover must prove, he must also allege so that an issue can be made thereon. [Lanitz v. King, 93 Mo. 513, 6 S.W. 263.]" close connection with the section above quoted follows section 612, in which it is declared: "And when the allegations or denials of ......