McAlister v. St. Joseph Street Const. Co.

• Decision Date: 02 December 1915
• Docket Number: No. 17515.,17515.
• Citation: 181 S.W. 54
• Parties: McALISTER v. ST. JOSEPH STREET CONST. CO. et al.
• Court: Missouri Supreme Court

181 S.W. 54

McALISTER v. ST. JOSEPH STREET CONST. CO. et al.

No. 17515.

Supreme Court of Missouri, Division No. 1.

December 2, 1915.

Appeal from Circuit Court, Buchanan County; Wm. K. Amick, Judge.

Suit by James W. McAlister against the St. Joseph Street Construction Company and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

On December 18, 1908, appellant filed in the circuit court aforesaid his petition, upon a promissory note, signed by respondents for $6,500, dated May 5, 1903, due on or before three years after date, payable to the order of J. W. McAlister, for value received, with interest at the rate of 5½ per cent. per annum after July 1, 1903, etc. The interest on said note was marked paid on the back thereof to January 1, 1906. It is averred in petition that no part of said note has been paid, except the interest aforesaid, and judgment is prayed accordingly.

The second amended answer pleads: (1) Failure of consideration. (2) That, pursuant to a contract between plaintiff and the defendant construction company, the latter paid to former $1,000 in cash, and executed the note sued on, in consideration of which plaintiff agreed to sell and convey to said defendant, upon the payment of said note, at maturity 20 acres of land, a rock quarry in the county aforesaid, together with all improvements thereon, consisting of one rock crusher, one steam drill, such engines, boilers, pumps, and other tools, as were then located on said property, with all improvements thereon; the conveyance aforesaid to be made by good and sufficient warranty deed conveying said property free and clear of all incumbrances, the defendant company to occupy and use said property from the date of said contract. That, pursuant to said agreement, the defendant company went into possession of said property, and used the rock crusher thereon. That, at the maturity of said note, defendant company was ready and willing to pay same, but that plaintiff was unable to convey the title bargained for, because his title to a portion of the premises was defective, and all of it was incumbered by an outstanding dower. That thereupon the defendant company abandoned possession, and, plaintiff failing within a reasonable time to acquire and convey a good title, it notified plaintiff that it had abandoned the property, rescinded the contract, demanded return of the note and money paid, and offered to make a settlement with him. The answer further pleaded the amounts of interest the company had paid plaintiff, the sums it had expended for improvements, etc., the amount of rock it had taken from the quarry, and prayed the court to declare the contract rescinded, for an accounting, and for a cancellation of the note.

About December 10, 1910, the above answer was interlined so as to point out the alleged defect in the quantity of land contracted to be conveyed, and alleging that Susan M. Adams — widow of Olmsted Adams, deceased — had an outstanding dower interest in said land.

The reply averred that defendants were then in possession of said land and had been in possession of same from May 20, 1903, continuously up to the filing of said reply; that during all said time defendant had possession and control of said property, the use thereof, and was during all of said time the owner of said land. It is further averred in the reply that plaintiff in 1903, or shortly thereafter, tendered defendants a deed to said property and again tendered the same in said reply.

The execution of the note having been admitted in the answer aforesaid, the defendants assumed the burden of proof in respect to the allegations of their answer.

Defendants' Evidence. Defendants read in evidence the contract in respect to the sale of said land as described in the answer. It is dated May 20, 1903. Said contract was signed by plaintiff and said construction company. The plaintiff agreed therein to sell and convey to said company the 20 acres of land in controversy, together with all improvements thereon, consisting of one rock crusher, one steam drill, such engines, boilers, pumps, and other tools as were then located on said land. It provides that plaintiff shall convey same "by a sufficient warranty deed, transferring to the said St. Joseph Street Construction Company, the said property, free and clear of all incumbrances for and in consideration of the sum of seventy-five hundred dollars ($7,500.00)." One thousand dollars of said sum was paid down, and the note sued on executed and delivered to secure said $6,500, with the names of the defendants signed thereto. Plaintiff agreed in said contract to execute a warranty deed to said land, joined by his wife, upon the payment of said $6,500, when due. The contract provides that the construction company should take immediate possession of said premises and occupy the same.

The 20-acre tract was a rock quarrying plant, and was bought by the construction company as a rock quarry. Marvin Davis was secretary of the construction company, and Davis Bros. acted as agents for said company.

Plaintiff delivered to the construction company an abstract of title to said land, and the same was turned over to H. K. White, Esq., attorney of said company, for his examination and opinion as to the title shown thereon. On June 1, 1906, Mr. White wrote Davis Bros. and pointed out alleged defects as to conveyances 4, 6, and 7, mentioned in said abstract. The defect in regard to conveyance 4 was on account of an outstanding dower interest in said land of Susan M. Adams, widow of Olmstead Adams, deceased. The other defects related to the Mansfield conveyance to plaintiff. White, in his letter to Davis Bros. of June 1, 1906, among other things, in speaking of Mrs. Adams, said:

"If you can obtain proof that she is now dead there will be no further compliance with this requirement needed; otherwise a quitclaim deed from her should be obtained."

This letter of White's and the abstract were forwarded to W. F. Maxwell, plaintiff's agent, in June, 1906. Maxwell returned the abstract about eight months after June 1, 1906. From June 1, 1906, to February, 1907, when the abstract was returned, the defendants heard nothing from plaintiff or Maxwell in regard to the title. On February ____, 1907, the abstract was again delivered by the president of defendant company to White. He examined same and returned it to Davis Bros. with a letter addressed to latter in regard to the title to said land. This letter from White is dated February 4, 1907, and reads as follows:

                "Law Office
                "H. K. White
                       "St. Joseph, Mo., February 4, 1907
                

"Davis Brothers, City — Gentlemen: On the first of June, last, I examined an abstract of title of property claimed by J. W. McAlister, being part of the southwest quarter (¼) of section thirty-one (31), township fifty-eight (58), range thirty-five (35).

"According to the abstract as shown to me there was a possible claim of dower by the wife of Mr. Adams, a former owner of an undivided one-half (½). Subsequent inquiry developed the fact that Mrs. Adams was still living; that she had been a widow but a short time. This fact, therefore, constitutes a cloud on the title.

"The property formerly belonged to Allen Mansfield. By his will and the death of his widow William Mansfield has now become the owner of the undivided one-half (½) of the land. In attempting to convey his interest he did not convey all that Mr. Mansfield claims, so there is a strip of ground on the east side of the railroad track owned by the grantee and claimed by Mr. McAlister which actually, according to the record, belongs to William Mansfield.

"Unless these objections can be removed the title cannot be approved.

                     "Yours respectfully,        H. K. White."
                

On February 8, 1907, the construction company wrote W. F. Maxwell, as follows:

"Dear Sir: We inclose you herewith a letter from Mr. H. K. White in reference to the quarry property belonging to Mr. McAlister. We had the matter up with you last summer and handed you a letter something like the one inclosed, and it was suggested by your attorney, Mr. Joseph Morton, that Mr. McAlister furnish us a bond to cure these defects in the title.

"We are well aware that Mr. McAlister is in position to give us a bond which is above question, but as we have now a case in our office something similar where a bond was given to cure the title, the giver of the bond was well worth half a million dollars, but is now dead and the estate is being wound up, and when such estate is entirely wound up we feel rather shady about our chances for the same.

"We would not care to give a warranty deed on this property should we accept your title and sell it again, and therefore we regret to say that we will have to decline the title offered.

                     "Very respectfully
                        "St. Joseph Street Construction Co.,
                                 "Marvin M. Davis, Sec'y."
                  Maxwell's reply reads as follows:
                        "St. Joseph, Mo., February 16, 1907.
                

"Messrs. Davis Brothers, City — Dear Sirs: Your letter of February 8th has been received inclosing letter addressed to you from Mr. H. K. White under date of February 4th relating to the title to the McAlister land. When the matter of bond against these irregularities noted by Mr. White was suggested I had a bond executed and have been waiting to hear from you in reply to the proposition made you on behalf of Mr. McAlister to make a bond and close the transaction. Since you prefer not to accept the bond I will proceed at once, on behalf of Mr. McAlister and by his instructions, to remedy such irregularities as exist in this title so as to make it fill the requirements of the contract of sale executed by Mr. McAlister. As soon as this has been done the abstract will be submitted to you again and the contract will be carried out on Mr. McAlister's behalf within a short time. Very truly, W. F. Maxwell."

Marvin Davis died the latter part of June,...