McQuary v. Missouri Land Company of Scotland
| Decision Date | 20 July 1910 |
| Citation | 130 S.W. 335,230 Mo. 342 |
| Parties | JAMES H. McQUARY and MISSOURI LAND & DEVELOPMENT COMPANY v. MISSOURI LAND COMPANY OF SCOTLAND et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.
Reversed and remanded (with directions).
T. D Steele for appellants.
(1) The contract or escrow agreement sued on in this case being entirely unilateral, with no consideration to support it, is therefore incapable of being specifically enforced. There is no mutuality of right and remedy under its terms. The Scotch Land Company could not compel the plaintiffs to perform, and unless each party to the contract can compel the other to perform, then neither can compel the other to do so. The doctrine of mutuality of right and remedy in both parties is the true and main test in all cases. Neither party is bound unless both are bound. 7 Am. and Eng. Ency. Law (2 Ed.), p 114; Davis v. Petty, 147 Mo. 374; Waterman on Spec Perf., sec. 186; Fry on Spec. Perf. (3 Am. Ed.), sec. 92. While it is true that the exercise of jurisdiction by a court of equity to compel specific performance is discretionary and not a matter of absolute right even where the given contract exhibits all the tokens and insignia of mutuality, a fortiori is it true as to an option or unilateral contract where the vendor is bound by a cable and the vendee by not so much as a silken thread. Hollman v. Conlon, 143 Mo. 378; Glass v. Rowe, 103 Mo. 539. (2) The plaintiffs based their right to a specific performance in this case upon the alleged ground that Judge Vincent had on February 15, 1906, verbally agreed to extend the time of payment until May 20, 1906. It will be useless to recount the testimony upon that point, but suffice to say that the trial court found that he did not do so. Then suppose that he did verbally agree to extend the time as contended for. Even in that event, if that be true, it would simply amount to a parol modification of a written instrument, which cannot be permitted under well established principles. Generally it is contrary to the rule at common law, that parties to a written agreement coming within the provisions of the Statute of Frauds may not, by mere oral agreement, alter one or more of the terms thereof, and thus make a new contract, resting partly in writing and partly in parol. 29 Am. and Eng. Ency. Law (2 Ed.), pp. 824-5; Warren v. Mfg. Co., 161 Mo. 122; Rucker v. Harrington, 52 Mo.App. 481; Beckman v. Mepham, 97 Mo.App. 161; Newman v. Bank, 70 Mo.App. 135; R. S. 1899, sec. 3418; Norris v. Letchworth, 124 S.W. 559; Henning v. Insurance Co., 47 Mo. 425. (3) Time under the contract in question was material and of the essence. Dunaway v. Day, 163 Mo. 426; Smoke Preventer Co. v. St. Louis, 205 Mo. 240; Cockrell v. Bopp, 106 Mo.App. 555.
T. L. Montgomery and E. P. Mann for respondents.
(1) The court had jurisdiction of the subject-matter and the parties. R. S. 1899, secs. 575 and 582; Bliss on Code Pleading (1 Ed.), sec. 126; Berry v. Robinson, 9 Mo. 276. (2) The escrow agreement was not unilateral. It was signed by all parties and there was a mutuality of obligation between the parties in interest. Even though an optional contract, it was founded upon a valuable consideration and can be specifically enforced. Ivory v. Murphy, 36 Mo. 534; Mastin v. Grimes, 88 Mo. 478; Smith v. Wilson, 160 Mo. 657; Real Estate Co. v. Spelbrink, 211 Mo. 671; Railroad v. Railroad, 98 Ala. 400; Waterman on Spec. Perf., secs. 169, 179; Warren v. Costello, 109 Mo. 340; In re Ferguson's Estate, 124 Mo. 575. (3) The agreement provided that the defendant Vincent might extend the time of payment. Even though time was of the essence of the contract, it was waived by the the conduct of the parties and by continued negotiations, and the Statute of Frauds does not apply. Pomeroy on Spec. Perf. (2 Ed.), secs. 417, 418, 419, 394, 395, 396, 397, 398; 2 Pomeroy's Supplementary Eq. Jur. (3 Ed.), sec. 815; Waterman on Spec. Perf., secs. 480 and 482; Melton v. Smith, 65 Mo. 315; Mastin v. Grimes, 88 Mo. 478; Lucket v. Williams, 31 Mo. 54. (4) The tender was made in money, could have been accepted, and was, therefore, sufficient. The appellant repudiated the contract, and it is apparent that no tender would have been accepted. It is therefore not necessary that any tender should have been made. The offer in the bill to comply with the terms of the contract is sufficient to authorize the decree for plaintiffs. 3 Pomeroy's Eq. Jur. (1 Ed.), note to sec. 1407, p. 453; Deichmann v. Deichmann, 49 Mo. 107; Pomeroy on Spec. Perf. (2 Ed.), sec. 361; Carskaddon v. Kennedy, 40 N. Y. Eq. 259. (5) Defendant Vincent's authority, under the escrow agreement, to extend the time of payment was irrevocable. Appellant did not revoke his general power of attorney, but same was placed of record at the instance of McQuary, on March 26, 1906, a few days before this suit was instituted, and pending all negotiations was in full force and effect and defendant Vincent had authority to act in a three-fold capacity, to-wit: (1) as arbiter under the escrow agreement; (2) under general power of attorney from the land company; (3) as solicitor for the land company. Whatever powers and authority he had could not be controlled or restricted by private instructions. Kilpatrick v. Wiley, 197 Mo. 123; Wood v. Railroad, 39 F. 52.
OPINION
In Banc.
This is an appeal from a decree of the circuit court of Greene county in a suit brought by the plaintiffs for specific performances. The Missouri Land Company of Scotland (Limited) is a corporation organized under the laws of Great Britain and is organized to transact business in the State of Missouri, and owned about 71,000 acres of land in Barry county, Missouri.
The plaintiff James H. McQuary is a citizen and resident of said county, and the Missouri Land & Development Company is a corporation organized under the laws of Arizona, with its principal office in Boston in the State of Massachusetts, and not authorized to do any business in Missouri. The defendant William A. Vincent is a citizen of Chicago, Illinois, and the First Trust & Savings Bank is a corporation organized under the laws of the State of Illinois with its place of business in the city of Chicago. The American Loan & Trust Company of Boston is likewise a foreign corporation and not authorized to transact business in this State. George T. Sidway and C. W. Lehnhard are residents and citizens of Barry county, Missouri.
On the 15th day of May, 1905, the plaintiffs McQuary and the Missouri Land & Development Company, and the Missouri Land Company of Scotland and the First Trust & Savings Bank signed what is known in the record as the escrow agreement, which is the basis of this suit. By that agreement it was provided that there should be forthwith deposited with the First Trust & Savings Bank by the persons hereinafter named the documents hereinafter set forth:
(a) By the Missouri Land Company of Scotland (Limited) a warranty deed dated March 1, 1904, executed by John Coubrough under the power of attorney from said land company dated April 26, 1905, conveying to James H. McQuary certain lands situated in Barry county, Missouri, for the full description of which reference is made to the said deed of conveyance.
(b) By James H. McQuary a warranty deed executed by himself and wife, dated March 1, 1904, conveying to the Missouri Land & Development Company, a corporation, the aforesaid lands.
(c) By the Missouri Land & Development Company, first, a trust deed, executed by it and dated March 1, 1904, conveying to the American Loan & Trust Company, a corporation of Boston, Massachusetts, the aforesaid lands in trust to secure the payment of five hundred bonds of the par value of one thousand dollars each, and, second, the said five hundred bonds with the interest coupons thereto attached, except the coupons due on or before March 1, 1905.
The Missouri Land Company of Scotland then agreed and guaranteed that it would within thirty days thereafter deliver to the said First Trust & Savings Bank a warranty deed conveying the lands to James H. McQuary to take the place and be in lieu of the deed executed by John Coubrough, and if said deed was not properly executed and delivered to the First Trust & Savings Bank within the thirty days, then the time limited for the deposit of subscriptions and the payment of the money should begin to run from the date of the deposit of said deed.
The second paragraph of the escrow agreement provided that within three months from the date of the deposit in escrow of the deeds and bonds, there should be a bona fide subscription by persons, firms or corporations financially responsible for the amount of their respective subscriptions, payable within four months from the 15th day of May, 1905, with the First Trust & Savings Bank, for enough of the bonds at a price not less that seventy per cent of the par value thereof to net thirty thousand dollars, then the said bank should have the several instruments set forth in paragraphs a, b and c of the first article of the escrow agreement recorded in the Recorder of Deeds' office of Barry county, Missouri, and then to deliver the bonds subscribed for to the several purchasers upon the payment of the money therefor; the said subscriptions for the bonds to be satisfactory to the said First Trust & Savings Bank, which had a right to reject any and all subscriptions that in its judgment were not made by financially responsible parties. Upon the return of the deeds from the recorder of deeds of Barry county, the said First Trust & Savings Bank of Chicago was directed to deliver...
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