Longworth v. Farmers & Traders Bank of Warsaw
| Decision Date | 05 December 1927 |
| Parties | ROY T. LONGWORTH ET AL., APPELLANTS, v. FARMERS & TRADERS BANK OF WARSAW, RESPONDENT. [*] |
| Court | Kansas Court of Appeals |
Rehearing Denied 222 Mo.App. 1 at 7.
Appeal from the Circuit Court of Benton County.--Hon. Chas. A Calvird, Judge.
AFFIRMED.
Judgment affirmed.
Bohling & Bohling for appellant.
Henry P. Lay for respondent.
Trimble, P. J., absent.
This is an action for damages alleged to have been suffered by reason of the wrongful delivery of a deed by defendant, deposited by plaintiffs in escrow with it. The case was tried before the court, resulting in a judgment in favor of defendant and plaintiffs have appealed. The suit is in three counts, the third count being the one upon which the case was tried and the one in which damages are asked. Counts one and two were dismissed. The case was tried upon an agreed statement of facts disclosing the following:
Plaintiffs are husband and wife residing in Detroit, Michigan, and were the owners of eighty (80) acres of land in Benton county, Missouri; on November 9, 1923, plaintiffs listed their farm for sale with one Owen, a resident of Warsaw. The terms of sale were to be $ 1500 cash, net to plaintiffs, or if a cash purchaser could not be found, $ 2000 net to them, $ 1000 in cash and the balance secured by a first mortgage on the property. On December 31, 1923, Owen wrote plaintiffs that he had an offer of $ 1500 cash for the farm and asked them for a $ 100 commission. He directed plaintiffs to send a deed to the place to the defendant, stating that it would take about twenty or thirty days to close the deal. Plaintiff accepted this proposition by letter dated January 4, 1924, and on the next day they wrote defendant enclosing a warranty deed to the property with the name of the grantee in blank, and stating that the deed was not to be delivered until Owen paid to the defendant the sum of $ 1500. Later plaintiffs agreed to allow Owen a commission of $ 100 and communicated this fact to the defendant with instructions to pay Owen $ 100 out of the purchase price of $ 1500. On January 30, 1924, Owen wired plaintiffs that he could close the deal at once if plaintiff would accept $ 700 cash and a second deed of trust for $ 700, secured by a note payable July 1, 1924. Plaintiff refused this offer but agreed to take $ 700 cash and a note for $ 800, secured by a first deed of trust on the farm, payable July 1, 1924. The matter dragged along until April 7, 1924, when plaintiff requested defendant to return the deed. Receiving no reply, plaintiffs, on April 21, 1924, again requested defendant to return the deed and on April 24, 1924, defendant wrote plaintiffs that the deal has not been closed, stating that if plaintiffs desired the return of the deed, defendant would forward it but advised them that the "deal will be closed up right away." Plaintiffs on April 28, advised defendant that if the matter was not closed up within the next two or three days, the purchaser should deposit $ 100 to plaintiffs' credit to secure the closing of the deal by May 31, 1924; and that if the $ 100 was not deposited with defendant to plaintiffs' credit by May 12, 1924, then the deed should be returned.
The agreed statement of facts recites that "between April 28, 1924, and July 7, 1924, plaintiffs received" a deposit slip of $ 1000 from defendant. This slip shows that on May 9, 1924, that sum was deposited with the defendant "for Longworth deed against contract." On July 7, 1924, plaintiffs wrote asking defendant to advise them "what the terms of this contract are and is there a time limit to it?" On July 11 defendant wrote plaintiffs that the $ 1000 left there was used in "taking up a deed that you sent here in January . . . the other $ 500 has not been paid to us as yet and we still have your deed here," and that if plaintiffs desired to have the deed returned, the bank would return the $ 1000 to Mr. Jones of Lincoln, Missouri, the man who deposited it. The defendant asked plaintiffs for explicit instructions as to what they desired and stated that it had gone to considerable trouble and was making no service charge. However, defendant did not give plaintiffs the terms of the contract.
On July 29, 1924, plaintiffs entered into a written agreement with Owen extending the time for closing the contract to September 15, 1924. As a consideration for such extension Owen consented to forego his $ 100 commission. He agreed to deposit $ 500 with the defendant, in addition to the $ 1000 on deposit, by September 15th and if he failed to deposit it at that time, he agreed to pay plaintiffs eight per cent interest on $ 1500 from July 29, 1924, until the "date on which the same is paid." On August 24, 1924, plaintiffs wrote defendant acknowledging receipt of its letter of the 11th and stating that the time for closing the matter had been extended to September 15; that Owen had waived his $ 100 commission; that it would be necessary for the latter to deposit $ 500 in addition to the $ 1000 then held by the defendant in escrow on or before September 15, 1924, and that when Owen had deposited the total sum of $ 1500 to plaintiffs' account it would be satisfactory to deliver the deed to him. On October 1, 1924, plaintiffs' attorney wrote defendant stating that he had written to Owen advising him that unless he had paid the sum of $ 500 plus interest at the rate of eight per cent from July 29 with the defendant on or before October 10, 1924, plaintiffs would recall the deed left with defendant in escrow and institute proceedings for recovery of the land sold by Owen for the plaintiffs, and asking defendant to advise the writer on or before October 10 whether or not Owen had made such a payment. On October 7, 1924, the defendant wrote plaintiffs' attorney that $ 1200 had been left in escrow with defendant and that this amount lacked $ 300 of the amount necessary to be deposited according to its contract with plaintiffs.
On November 12, 1924, defendant wrote plaintiffs that it had been threatened with a suit by Mrs. Graf, the buyer of the farm, and that it had delivered plaintiffs' deed taking an indemnity bond, of which a copy was enclosed. This bond was given by Mr. Jones of Lincoln and was in the sum of $ 600. It provided, among other things, that whereas Mr. and Mrs. Graf had caused to be deposited with the defendant the sum of $ 1200 and was claiming they had paid plaintiffs through Owen, their agent, the further sum of $ 600 and that by reason thereof they were entitled to the delivery of the deed and whereas in consideration of the execution of the bond defendant had delivered the deed, it was agreed defendant should hold the said sum of $ 1200 on deposit with them until plaintiffs should furnish an abstract of title showing a good title and that if defendant should be sued by plaintiffs, that said Jones would defend such suit or suits and pay the judgment, costs and attorney's fees therein so that defendant should be held harmless by reason of the delivery of the deed. The deed was delivered to Mr. and Mrs. Graf on November 12, 1924.
The facts further show that the purchase price of the farm was $ 1800 and that after its purchase Mr. and Mrs. Graf paid Owen the sum of $ 800 on the purchase price; that in order that the balance of $ 1000 might be paid by the Grafs, a deed of trust was executed by...
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Longworth v. Farmers & Traders Bank of Warsaw
...Kansas CityDecember 5, 1927 [Copyrighted Material Omitted] 222 Mo.App. 1 at 7. Original Opinion of December 5, 1927, Reported at: 222 Mo.App. 1. Judgment OPINION ARNOLD, J. ON REHEARING. The chief contention of plaintiffs in their motion for rehearing and in their argument is that as defend......