MacLeod v. Skiles

• Decision Date: 30 April 1884
• Parties: MACLEOD, Plaintiff in Error, v. SKILES.
• Court: Missouri Supreme Court

81 Mo. 595

MACLEOD, Plaintiff in Error,

v.SKILES.

Supreme Court of Missouri.

April Term, 1884.

Error to Jackson Special Law and Equity Court.--HON. R. E. COWAN, Judge.

AFFIRMED.

Boggess, Cravens & Moore for plaintiff in error.

The two counts in the petition state separate and distinct causes of action. But conceding that the two counts state but one cause of action, the court erred in compelling the plaintiff to elect on which count he would proceed, and in striking out the other. Bliss on Code Plead., §§ 118, 119, 120, 295, and authorities cited; Brinkman v. Hunter, 73 Mo. 172. The second count stated a good cause of action. Nevidek v. Meyer, 47 Mo. 600; Landman v. Ingram, 49 Mo. 212; McConnell v. Brayner, 63 Mo. 461; Bracket v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Cush. 549.

Bryant, Holmes & Waddill for defendant in error.

The motion to require plaintiff to elect was properly sustained for the reason stated in the motion. The plaintiff was in no way prejudiced by striking out said count. The parol agreement therein alleged was contemporaneous with and merged in defendant's deed to plaintiff, and could not, therefore, be permitted to be proved. Gooch v. Connor, 8 Mo. 391; Robbins v. Ayres, 10 Mo. 538; 2 Whart. on Ev., §§ 920, 921. The second count failed to state a cause of action, and in addition the evidence failed to prove its allegations. The alleged written contract was executory, and the delivery and acceptance of defendant's deed conveying said land to the plaintiff, abrogated said written contract, and plaintiff's contract thenceforward was contained in the covenants of defendant in that deed, there being no fraud or mistake alleged or pretended. Kerr v. Calvit, Walker (Miss.) 115; Waiver v. Bentley, 1 Cai. 48; Hawes v. Baker, 3 Johns. 506; Williams v. Hathaway, 19 Pick. 387; Crotzerv. Russell, 9 Serg. & Rawle 78; Stebbins v. Eddy, 4 Mason 414.

RAY, J.

The petition in this case contains two counts. The first is in substance as follows: That on April 25th, 1877, plaintiff and defendant made and entered into a contract in writing by which defendant sold and agreed to convey to plaintiff block one in Skiles & Western's addition to the City of Kansas, for the consideration of $7,200, $10 down and $1,990 when the title to the block was shown to be good, and a good and sufficient deed should be made and delivered or tendered by defendant to plaintiff, the balance to be secured by three promissory notes of plaintiff--two for $1,733.33 each, and one for $1,733.34, the first two notes maturing at one and two years respectively, and the other at three years, each bearing ten per cent per annum from date, and secured by a deed of trust on said real estate, same to be executed and delivered concurrently with said deed and the payment of said $1,990, and to bear the same date; subject only to the terms and legal effect of an agreement in writing between said defendant and one Stevenson for the sale and conveyance, by the former to the latter, of part of said real estate which said plaintiff by the terms of said agreement was to comply with and perform, and was to have and receive all moneys due or to become due from said Stevenson; that plaintiff has kept and performed all the terms of said agreement on his part, but defendant has failed, neglected and refused to keep and perform the same on his part in this, that he failed, neglected and refused to furnish an abstract of title to said real estate, or otherwise to show plaintiff that title thereto was good, by reason of which plaintiff was compelled to and did expend $30 to procure an abstract of title to said real estate; and in this, that he wholly failed, neglected and refused to execute and deliver, or tender and offer to deliver to plaintiff a general warranty deed of said premises, conveying the same to plaintiff; but did tender and deliver to plaintiff a deed of general warranty in form, but containing an exception therein as to the taxes thereon of and for the year 1877, which said plaintiff refused to accept and did not accept in performance of said written contract; that the State and county taxes on said real estate for the year 1877, and of the city of Kansas, had then been levied and assessed for that year as well as for many preceding years, and the same were then a lien thereon; said State and county taxes for the year 1877 amounted the sum of $57.35, which defendant has wholly failed, neglected and refused to pay; that plaintiff has been compelled to and paid the same on the 16th day of February, 1878, by reason whereof plaintiff has been damaged in the sum of $100, for which, with interest, he asks judgment.

For a second cause of action plaintiff states that defendant offered to deliver said deed to plaintiff on or about the 22nd of May, 1877; plaintiff then refused to rereceive and accept the same in performance of said written agreement, or to pay said $1,990, or to execute and deliver said notes and deed of trust until said taxes were by defendant paid; thereupon plaintiff and defendant made the following other and further agreement, outside of and beyond the said written agreement, that is to say: That the plaintiff should and would then and there pay the defendant said sum of $1,990, execute and deliver said notes and deed of trust, and in consideration thereof defendant should and would, out of and with a part of the money so to be paid by plaintiff, pay all the taxes then levied against or assessed upon said real estate, county, State and city. Pursuant to said agreement plaintiff then paid said sum of money and executed and delivered to defendant the said notes and deed of trust; and defendant, pursuant to and as part performance of said agreement, on or about the 22nd of May, 1877, paid all said taxes except only the State and county taxes for the year 1877, amounting to the sum of $57.35, which he then and ever since has refused to pay. On the 16th day of February, 1878, plaintiff was compelled to and did pay said taxes, by reason whereof he has been damaged in the sum of $100, for which with interest he asks judgment.

The answer of defendant was simply a general denial.

At the March term, 1879, defendant filed his motion to require the plaintiff to elect on which count of the petition he would proceed to trial, which motion is in words and figures following:

“Defendant moves the court to order plaintiff to elect on which count of the petition he will proceed, for the reason (1) that the two counts in said petition are inconsistent, in that the first count declares upon the written contract therein referred to as subsisting, whereas the second count is based upon a subsequent parol agreement, which as appears by the petition, was entered into as a substitute for said written contract. (2) Both counts in said petition are for substantially the same cause of action as appears on the face of the petition.

At the September term, 1879, the motion was sustained and the plaintiff elected to proceed on the first count, and the court thereupon struck out the second count, to which action of the court the plaintiff duly excepted. To sustain the issue on his part, the plaintiff at the trial read in evidence the written contract signed and sealed by the parties mentioned in the petition, and which is as follows, to-wit:

“For the consideration of $7,200, this day paid and secured to be paid to H. H. Skiles, of Kansas City, Mo., by George MacLeod, in the manner hereinafter stated, the said Skiles has this day sold, and by these presents binds himself to convey to said MacLeod lots numbered from one to thirty inclusive, in block one, in Skiles & Western's addition to City of Kansas, county of Jackson, State of Missouri. In consideration whereof said MacLeod hereby agrees and binds himself to pay to said Skiles the sum of money aforesaid, as follows: $10 this day paid in hand; $1,990 to be paid so soon as the title to said lots is shown to be good, and a good and sufficient deed therefor is delivered or tendered by said Skiles to said MacLeod, balance to be secured by the three promissory notes of said MacLeod, two for $1,733.33 each, and one for $1,733,34. One of said notes to mature in one year, one to mature in two years, and the last of said notes to mature in three years, each to bear ten per cent interest from date, and to be secured by deed of trust on said real estate, the same to be executed and delivered concurrently with said deed and the payment of said sum of $1,990, said deed to be one of general warranty, and said lots to be free of any and all incumbrances; said notes to bear the same date as said deed and deed of trust. It is hereby expressly understood and agreed that said Skiles has...