Mastin v. Grimes

• Decision Date: 31 October 1885
• Citation: 88 Mo. 478
• Parties: MASTIN, Appellant, v. GRIMES.
• Court: Missouri Supreme Court

88 Mo. 478

MASTIN, Appellant,

v.GRIMES.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

REVERSED.

Karnes & Ess and C. O. Tichenor for appellant.

(1) By the contract sued on, plaintiff had an admitted right to the land; he did not by consent give up that right and if it is lost it must be by such conduct on his part as will make it inequitable if not fraudulent to assert it. (2) Time is not ordinarily of the essence of a contract. Waterman on Spec. Per., sec. 460; Pomeroy on Spec. Perf., sec. 371; Smith v. Lawrence, 15 Mich. 501; McKay v. Carrington, 1 McLean, 59; Hubbell v. Von Schoening, 49 N. Y. 330; Jones v. Robbins, 29 Me. 351; Scarlet v. Stein, 40 Md. 525; Miller v. Miller, 25 N. J. Eq. 368; Pritchard v. Todd, 38 Conn. 414; Snowman v. Hartford, 55 Me. 199; Seton v. Slade, 7 Vesey, 274; Calcroft v. Roebuck, 1 Ves. 224; Woodward v. Van Hoy, 45 Mo. 301. (3) Notice that the contract would be cancelled if the contract was not completed within five days was unreasonably short. Hubbell v. Von Schoening, 49 N. Y. 331; Thompson v. Dulles, 5 Rich. Eq. 370; Pomeroy on Spec. Perf., sec. 395; Banks v. Burnham, 61 Mo. 76. (4) The attachments on the land not only affected its market value, but exposed the owner to litigation, and this afforded a reasonable excuse for delay on plaintiff's part. Hymers v. Branch, 6 Mo. App. 315; Socket v. Mason, 31 Mo. 57; Snyder v. Spaulding, 57 Ill. 486; Thompson v. Dallas, 5 Rich. Eq. 370. (5) No deed was ever tendered plaintiff; none was ever executed. To have rescinded the contract he must have tendered a deed. Bruner v. Wheaton, 46 Mo. 367. (6) The part of the purchase money paid is still retained by defendant and he could not rescind without tendering it back. Sanborn v. Batchelder, 51 N. H. 434; Guckenheimer v. Angvine, 81 N. Y. 396. (7) Defendant by his conduct admitted the validity of the contract after the five days notice and thereby destroyed the effect of the latter. Mix v. Balduc, 78 Ill. 217: Murrell v. Goodyear, 62 Eng. Ch. 450. (8) The receipt given in this case is a sufficient memorandum. Reed on Stat. Fr., sec. 329; Pomeroy on Spec. Per., sec. 85 and note; Waterman on Spec Per., sec. 235; Fulton v. Robinson, 55 Texas, 401; Cossack v. Descoudres, 1 McCord 425 (side page); Welch v. Bayoud, 21 N. J. Eq. 186; Westervelt v. Matheson, 1 Hoff. Ch. 37; Ellis v. Deadman's Heirs, 4 Bibb. 466; Barickman v. Kuykendall, 4 Blackf. 21. (9) This receipt shows a mutuality of agreement, and it is sufficient when signed by the party sought to be charged. It is not optional or unilateral in its character, and if signed by both parties would be mutual as to remedy. Reed on Stat. Fr., secs. 361, 365; Pomeroy on Spec. Per., sec. 75 and note, also sec. 170; Waterman on Spec. Per., sec. 239 and note; Glason v. Bailey, 14 Johns. 489; Ivory v. Murphy, 36 Mo. 534; Bean et al. v. Valle et al., 2 Mo. 126; Luckett v. Williamson, 37 Mo. 388.

Boggess & Moore for respondent.

(1) Each action for the specific performance of a contract for the sale and conveyance of land must rest on its own peculiar facts. (2) Every such case is addressed to the sound judicial discretion of the chancellor to be granted or refused according to the very right of the case. (3) Time may by the terms of the agreement be made of the essence of the contract and to be strictly attended to, or it may be made so by subsequent notice. Waterman on Spec. Perf., secs. 6, 465; Pomeroy on Spec. Per., secs. 395-6-7; Taylor v. Brown, 2 Beav. 180; 5 Law Rep. 527; 10 Law Rep. 287; Fuller v. Hovey, 2 Allen, 324; Taylor v. Williams, 45 Mo. 80; O'Fallon v. Kennerly, 45 Mo. 124; Waterman on Spec. Perf., secs. 458-9-460; Story on Equity, 736-750. (4) Where the contract is unilateral--only one party signing and bound thereby--and remains entirely executory--the court will not decree specific performance at the suit of the party not bound where he is in default. Jones v. Noble, 3 Bush, 694; Bispham's Equity, sec. 377, note 11; Fry on Spec. Per., sec. 721-733; Kerr v. Purdy, 51 N. Y. 629; Marble Co. v. Ripley, 10 Wall. 339-57; Maughlin v. Perry, 35 Md. 352; Beach v. Dyer, 93 Ill. 295-301; Iglehart v. Gibson, 56 Ill. 85; M'Cah v. Rozier, 69 Ill. 501-502; Phelps v. Railroad, 63 Ill. 468-469; Magoffin v. Holt, 1 Duvall [Ky.] 95; Hoyt v. Tuxbury, 70 Ill. 331-338; Fessler's Appeal,75 Pa. St. 498. (5) It is believed that imperfection of title will not avail the vendee in such cases, as at most where he is not bound, whether he will trade or not is purely optional, and his option depends upon a strict compliance with the terms of the option. Taylor v. Williams, 45 Mo. 80; Jones v. Noble, 3 Bush, 694; Kerr v. Purdy, 51 N. Y. 629; Maughlin v. Perry, 35 Md. 352-7. (6) If in any case the vendee has a right to object to title, and delay performance on that account, his objections must be substantial and real, not captious or fanciful. Hymers v. Branch, 6 Mo. App. 511-14. (7) The vendor is not bound in all cases to restore the deposit paid, and surrender other things received by him by reason of the agreement to sell, as conditions precedent to rescission; at the most he is only bound to put himself in such attitude that he cannot himself enforce performance. Staley v. Murphy, 47 Ill. 241-4. (8) But this is not a case of rescission--there was no contract that respondent could have enforced--his only purpose or right was to terminate his own liability to perform; this he had a right to do by the notice read in evidence--placing his adversary clearly in default. Waterman Spec. Per., sec. 465, et seq.; Pom. Spec. Perf., 395, and other authorities supra. If specific performance be not decreed, appellant is not without remedy if he is damaged. He still has his action at law for damages.

John K. Cravens also for respondent.

(1) A bill for specific performance of a contract for the conveyance of land will not be enforced unless there is mutuality of remedy on the contract when the bill is filed. Mason v. Payne, 47 Mo. 517; Tull v. David, 45 Mo. 414; 1 Chitty on Contracts, 11 and 16; 1 Sugden on V. & P. 196; 1 Parsons on Contracts, 449; Moss v. Green, 41 Mo. 389; Lewis v. Ins. Co., 61 Mo. 534; Mers v. Franklin, 68 Mo. 129; Jones v. Noble, 3 Bush, 694; Bodine v. Glading,21 Pa. St. 50; Sturgis v. Galindo, 59 Cal. 28; Smith v. Reynolds, 8 Fed. Rep. 696; Richardson v. Hardwick, 106 U. S. 252. (2) In all unilateral contracts, depending for consideration upon the performance of a stipulated condition, performance is a condition precedent, time is of the essence of the contract, and the promisee must perform within the period limited, or the contract does not bind. Waterman on Spec. Perf., sec. 434; Magoffin v. Holt, 1 Duvall, 95; Jones v. Noble, 3 Bush, 694; Vassault v. Edwards, 43 Cal. 458; 2 Leading Cases in Equity [4 Am. Ed.] 1129; Mason v. Payne, 47 Mo. 517-520. (3) In the class of contracts like the one under consideration, which for want of mutuality are designated “unilateral,” the obligation of the party making the same is revocable at his will at any time before performance or offer to perform by the other. Waterman on Spec. Perf., sec. 134; Fry on Spec. Perf., sec. 178-180; Perkins v. Hadsell, 50 Ill. 216; Vassault v. Edwards, 43 Cal. 458; Weaver v. Wood, 9 Barr [Pa.] 221; Railroad v. Bartlett, 3 Cush. 234. (4) If one of two parties concerned in a contract respecting lands gives the other notice that he does not hold himself bound to perform and will not perform, the contract between them and the other contracting party to whom the notice is so given, makes no prompt assertion, within the time so fixed, of his right to enforce the contract, equity will consider him as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the performance of the contract. 2 Leading Cases in Equity [4 Am. Ed.] 1056, 1061, 1135; Routledge v. Grant, 4 Bing. 653; Kirby v. Harrison 2 Ohio St. 326.

SHERWOOD, J.

Plaintiff seeks specific performance of an agreement in these words:

“KANSAS CITY, Mo., April 13, 1881.

Received of D. C. Mastin ten dollars, being part purchase money for fifty feet by one hundred and thirty-two feet on the northwest corner Eighteenth and Cherry streets; also twenty-five feet by one hundred and thirty-two feet on the southwest corner Eighteenth and Cherry streets, Kansas City, Missouri, the balance being thirty-six hundred and ninety dollars ($3690), to be paid as soon as abstract to said lots can be examined. Abstract to be furnished by William B. Grimes.

WM. B. GRIMES,

BY L. F. RIEGER, Agent.”

The defence was “that the plaintiff on examination of said abstract falsely and fraudulently, and for the purpose of avoiding compliance with said memorandum, paying the balance of said purchase money and accepting a deed from defendant for said real estate, pretended the defendant's title to said real estate to be imperfect.”

I. This agreement, though unilateral or “one-sided,” because signed by only one of the parties thereto, is still such an one as will be specifically enforced in equity, the statute only requiring that the memorandum which takes the case out of its operation be signed “by the party to be charged therewith, or some other person by him thereto lawfully authorized.” R. S., sec. 2513.

The ruling of courts of equity in this respect constitutes an exception to the principle which requires mutuality in agreements which are to form bases for specific performance. At one time the correctness of this view of the subject was denied. Lawrenson v. Butler, 1 Sch. & Lef. 13; Armiger v. Clarke, Bunb. 111. Chancellor Kent seems by his intimations in the cases of Parkhurst v. Van Cortland, 1 Johns. Ch. 282; Benedict v. Lynch, Ib. 370, to have favored the ruling made by Lord Redesdale in the case first cited, that both parties to the agreement must be bound or else neither would be; but in a later case, Clason v. Bailey, 14 Johns. 484, having occasion to review his former...