McManus v. Gregory

• Decision Date: 20 January 1885
• Citation: 16 Mo.App. 375
• Parties: C. S. MCMANUS, Appellant, v. M. A. GREGORY ET AL., Respondents.
• Court: Missouri Court of Appeals

16 Mo.App. 375

C. S. MCMANUS, Appellant,

v.M. A. GREGORY ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Jan. 20, 1885.

APPEAL from the St. Louis Circuit Court,

Reversed and remanded.

D. D. FASSETT and SIM T. PRICE, for the appellant: The sales were separate.-- Moore v. Bonnet, 40 Cal. 251; Southwell v. Beegley, 5 Ore. 458; Jenness v. Wendell, 51 N. H. 66; Van Eps v. Schenectady, 12 Johns, 436; Wells v. Day, 124 Mass. 38; Roots v. Dormer, 4 Barn. & Adol. 77; Emmerson v. Heelis, 2 Taut. 38. Words of exception or reservation in any instrument are regarded as the words of the party in whose favor the exception or reservation is made. Lofield's case, 10 Rep. 106 b; Donnell v. Columbia Ins. Co., 2 Sumn. 366-381; 2 Pars. Con. (6th ed.) *505, 507. And they would be construed against such party.-- Cardigan v. Armitage, 2 B. & C. 197; Bullen v. Deming, 5 B. & C. 842; Jackson v. Hudson, 3 Johns. 387; House v. Palmer, 9 Ga. 497; Jackson v. Lawson, 11 Johns. 191. A tender was not necessary.-- Clarke v. Drake, 63 Mo. 360; Quinn v. Brittian, Hoff. Ch. 353.

JOHN BOYLE and L. B. VALLIANT, for the respondents.

ROMBAUER, J., delivered the opinion of the court.

The plaintiff brought an action for specific performance of a contract of sale of real estate. The defendant filed a general demurrer to the plaintiff's petition, which the court sustained. The plaintiff refused to plead any further, whereupon the court rendered final judgment in favor of the defendant.

The error complained of is the action of the court in sustaining the defendants' demurrer. The petition is as follows: “Plaintiff for her amended petition herein filed by leave of court, states that heretofore, to wit: on the 21st day of May, 1883, the defendants then were and now are the legal owners of two certain lots of ground in the city of St. Louis and State of Missouri, with a brick dwelling house and certain other improvements on each lot; said lots being more particularly described as Nos, 1511 and 1513 Clark Avenue, block 210, each lot being 25 feet front on Clark Avenue by a depth of 173 feet; the same being valuable property and with the tenement accommodations in the rear and situated on said lots, renting annually for about $1,300 for the two pieces of property. That about the same time and before and since said 21st day of May, 1883, Fisher & Co. was a firm, composed of S. J. Fisher, doing a real estate business in the city of St. Louis. That on or about said 21st day of May, 1883, said Fisher & Co. was the duly appointed and legally authorized agent of the defendants to make sale of said two lots and improvements, at public auction and to prescribe the terms therefor and to bind said defendants in all things in and about said sale.

That on or about May 21, 1883, said Fisher & Co., for and on behalf of defendants, and acting as their duly authorized agent, for the information, use, and benefit of prospective buyers, issued and put forth a printed prospectus or advertising hand-book, setting forth the time and terms of the proposed sale of said property, together with a large quantity of other real estate, which said prospectus among other things, set forth the following terms and conditions of sale, to wit:--

‘TO PURCHASER:

The owners of every piece of property listed for this sale having fully determined to sell, thus furnishing an opportunity for purchasers to get bargains, there will not be a by-bid, either by an owner or any one representing him, during the day, as every patron to this sale has given his free and unqualified consent to this arrangement, on account of the privilege granted him as hereinafter mentioned. The owners of every piece listed are more than anxious to realize on their property at once and without delay, although it be at a sacrifice, as seen from the fact of their going to the expense incurred in conducting a sale of this description. There is no (nor will there be) fixed or cut and dried price that any given property must bring, owners being willing to risk the market and purchasers determining the amount to be brought. If, however, any piece of property is knocked down at this sale at a price that the owner considers too great a sacrifice, he will have the right, within forty-eight hours after the sale to redeem the same by paying a bonus of not less than seven dollars and not more than thirty dollars.

This sum, together with the earnest money, will be turned over to the purchaser and sale declared off, it being the determination to make this sale an open and fair transaction as between buyer and seller. * * *

TITLE.

Owners vouch that the title to every piece of property offered at this sale is good. All earnest money will be refunded and examiner's fee paid by Fisher & Co., if title is not found in all respects perfect. Full warranty deeds given.

TAXES.

Taxes of 1882, and all previous years, seller must of course pay. Taxes of 1883 purchaser to deduct one-half the amount from first payment. The deed will then read: Warrant and defend against claims of all person whomsoever except against taxes for 1883.

TERMS.

One-third cash, one-third in one year, one-third in two years, interest on deferred payments six per cent, payable annually, secured by deed of trust on property sold.

DEPOSIT.

$30.00 required down on purchase of property on $1,000 or under. $50.00 on sales between $1,000 and $2,000. $75 on sales between $2,000 and $5,000 and so on. That part of each plat colored red is the property for sale.'

That plaintiff came into possession of a copy of said prospectus or hand-book, and acting on the faith of the offers therein made, attended said advertised sale at the time and place designated. That at said sale one of said lots, twenty-five feet by one hundred and seventy-three feet, being No. 1513 of ‘Plat No. 29’ of said prospectus, and the improvements thereon, were put up at public auction by Lanham & Sutton, the auctioneers, duly and legally authorized by defendants to make said sale, and sale thereof by them made, with the privilege of the purchaser of said lot and improvements taking the other of said lots, twenty-five feet by one hundred and seventy-three feet, being No. 1511 of ‘Plat No. 29’ of said prospectus, and the improvements thereon, at the same sum and price bid for said first lot and improvements.

That at said auction sale, plaintiff was the highest bidder for said first lot and improvements thereon, plaintiff's bid therefor being $4,075, and the same was knocked down to plaintiff by said auctioneers for that sum and price. That plaintiff then and there also elected to take said other lot and the improvements thereon for the sum and price of $4,075, and said auctioneers then and there declared plaintiff to be the purchaser thereof, and duly entered on “Plat 29' of said prospectus, the fact that plaintiff was the purchaser of said respective lots. That plaintiff afterwards paid Fisher & Co., agent of said defendants, the amount of earnest money required, to wit: $50, which deposit was accepted by said Fisher & Co., and the facts entered in due form by said agent of defendants, that plaintiff had become the purchaser of said property.

That afterwards, and within forty-eight hours after the sale of said property, defendants, through said Fisher & Co., their agent, tendered to plaintiff the sum of $50 earnest money paid by plaintiff, and the further sum of $30 as a bonus, and declared to plaintiff that defendants had elected to redeem the property sold, and would...