Meek v. Hurst

• Decision Date: 27 November 1909
• Citation: 223 Mo. 688,122 S.W. 1022
• Parties: MEEK v. HURST.
• Court: Missouri Supreme Court

122 S.W. 1022

223 Mo. 688

MEEK v. HURST.

Supreme Court of Missouri, Division No. 1.

November 27, 1909.

1. REFORMATION OF INSTRUMENTS (§ 19) — GROUNDS — MUTUAL MISTAKE.

To justify the reformation of an instrument on the ground of mistake, the mistake must have been mutual, which may arise from a mistake made by a scrivener, who was acting as mutual agent of both parties in drafting the instrument.

2. REFORMATION OF INSTRUMENTS (§ 36) — GROUNDS — PLEADING.

Though a contract may be reformed and subsequently enforced in the same suit, a reformation will not be granted, unless the elements necessary to justify it are pleaded as grounds for relief.

3. SPECIFIC PERFORMANCE (§ 10) — ENFORCEMENT OF PART OF CONTRACT.

A purchaser may, at his option, have specific performance of that part of the contract susceptible of specific performance whenever a decree will, in the sound discretion of the court, result in equity between the parties.

4. PLEADING (§ 214) — DEMURRER — ADMISSIONS.

A demurrer admits substantive facts well pleaded, but mere conclusions of law, such as the pleader's construction of a written instrument forming the basis of the action, are not admitted.

5. CONTRACTS (§ 176) — CONSTRUCTION — QUESTION FOR COURT.

The construction of an unambiguous and entire contract, pleaded as the basis of the action, is for the court.

6. VENDOR AND PURCHASER (§ 3) — SALE OR AGENCY — CONSTRUCTION OF CONTRACT.

A contract by an owner of land, authorizing an agent to sell the land on terms specified, and which binds the owner to execute conveyances, and declares that the authority is irrevocable for a specified time, does not give the agent an option to purchase, but is a power of attorney irrevocable for the specified time, and imposes on the recipient of the power the duties of an agent.

7. PRINCIPAL AND AGENT (§ 69) — DUTIES OF AGENT TO PRINCIPAL — PURCHASE OF PRINCIPAL'S PROPERTY.

The doctrine which forbids an agent to buy from or sell to himself is based on the idea of preventing the commission of fraud.

Appeal from Circuit Court, Livingston County.

Action by B. J. Meek against John B. Hurst. From a judgment of dismissal rendered on sustaining a demurrer to the plea, plaintiff appeals. Affirmed.

Davis & Son and Kitt & Taylor, for appellant. L. A. Chapman, for respondent.

LAMM, P. J.

Plaintiff claims to have purchased defendant's land in Livingston county by written contract, and sues for reformation and specific performance. Cast nisi on a general demurrer to his first-amended bill, he refused to plead over, suffered judgment, and appealed.

The reformation sought relates to the contract description of the real estate, which is: "S. W. ¼, sec. 14, and 6½ acres out of S. E. ¼ sec. 14. All in Twp. 59, R. 24, containing in all 165½ acres." Referring to the "6½ acres," plaintiff's bill charges said contract description is not the true one, but related to an agreement to sell two small parcels of land, viz., an acre off the south end of the S. W. ¼ N. E. ¼ of section 14, and 4½ acres, more or less, described by given metes and bounds, in the S. E. ¼ of said section. In that regard the bill charges "that by a mistake of the scrivener in drawing said contract" the said two small parcels were described as "6½ acres out of the S. E. ¼, sec. 14, instead of the true description" as set forth. It is not alleged in the bill that the scrivener in drafting the contract was the mutual agent of plaintiff and defendant; nor is it alleged that the mistake was a mutual mistake of the parties to the contract. It is charged that plaintiff is a real estate agent, plying his vocation at Chillicothe as a dealer in buying and selling land. The record shows the contract was partly in print and partly in writing. Presumably it is a blank form used by plaintiff in his business. While not material to any question to be determined, it is fair to presume, from the usual course of business, that the "scrivener" was the plaintiff himself, who filled out his own blank.

Referring to the phase of the bill anent specific performance, it will not be necessary to set forth the entire bill. In brief, it alleges the contract consisted of two parts, both in writing, bearing different dates, but relating to each other, and both pleaded in hæc verba; the first part reading: "Authority to Sell. No. _____. I, John B. Hurst, of Chula, P. O., Livingston county, state of Missouri, hereby authorize B. J. Meek, of Chillicothe, Mo., to sell the following described real estate, situate in the county of Livingston, state of Mo., to wit: S. W. ¼ sec. 14, and 6½ acres out of S. E. ¼, sec. 14. All in Twp. 59, R. 24, containing in all 165½ acres, and to make contract therefor in my name, subject to the condition hereinafter named. I agree to accept in full payment of said farm the sum of $3900.00 net to me, and cure title. In payment of the above-mentioned sum net to me, I agree to accept $_____. All (or not less than $_____ All) cash. I would want $500.00 to bind sale, balance March 1, 1906. I agree to give possession of said premises Mar. 1 — 1906. I agree in case of sale to give purchaser a general warranty deed to the above-described premises, and to furnish him a complete abstract, which shall show a fee-simple title in me. This authority is irrevocable for a period of 30 days from its date, after which it can be terminated by giving notice in writing of the intention to withdraw. Witness my hand at Wagon Road date April 25, 1905. [Signed] J. B. Hurst, Owner." The second part reads: "May 9, 1905. Received of B. J. Meek $500.00, in part payment of my land situated in Livingston county, Missouri, consisting of 165½ acres, in compliance with a contract entered into by me on the 25th day of April, 1905. [Signed] J. B. Hurst." For convenience, that part of the contract headed "Authority to Sell," of date April 25, 1905 will be called "A," and the receipt of date, May 9, 1905, "B."

The bill is not drawn on the theory there was an oral contract between plaintiff and defendant relating to the purchase of real estate, followed by such possession in (or performance by) the vendee, or payment in whole or in part, or valuable improvements made as would operate to take the case out of the statute of frauds and perjuries. Nor is it drawn on the theory that the written contracts were modified by an after oral agreement, accompanied by such possession and performance, etc., as would take the case out of the statute of frauds and perjuries. Contra, the bill is drawn on the theory that the whole contract was in writing, and consisted of "A" and "B." The pleader's construction of the written contract is set forth in the bill to be that plaintiff had an option to buy the land for a period of 30 days from April 25, 1905, and that defendant desired "to sell the land to plaintiff, or to place the same in his hands for sale," and to that end executed "A"; that on May 9, 1905, it was agreed that plaintiff should buy, and to that end defendant executed "B"; that plaintiff thereby made his choice under "A" to buy in his own proper person. The pleader next assumed that his pleaded...