Meredith v. Brock

• Decision Date: 18 May 1929
• Docket Number: No. 27626.,27626.
• Citation: 17 S.W.2d 345
• Parties: CHARLES A. MEREDITH, Appellant, v. RILEY T. BROCK ET AL.
• Court: Missouri Supreme Court

17 S.W.2d 345

CHARLES A. MEREDITH, Appellant, v. RILEY T. BROCK ET AL.

No. 27626.

Supreme Court of Missouri. Division One.

May 18, 1929.

Appeal from Circuit Court of City of St. Louis. — Hon. Anthony Ittner, Judge.

AFFIRMED.

S. Mayner Wallace for appellant.

(1) The evidence shows that a partnership, in fact, among the said four defendants, for the acquisition and the selling of the said realty, existed. Vickers v. Arthur (Mo. App.), 9 S.W. (2d) 813. The evidence also shows that the plaintiff was caused, by the said four defendants, to believe and to act, to his prejudice, upon the assumption that such partnership existed even if (in point of fact) same did not exist; and, in such event, such partnership will now be assumed. 30 Cyc. 384, 385; Bissell v. Warde, 129 Mo. 439; Gambel v. Grether, 108 Mo. App. 340. (a) This court is not concluded by the trial judge's finding, when the same is not supported by the weight of the credible evidence. Gross v. Byler (Mo.), 297 S.W. 391. (b) A partnership may be formed for a single transaction. Schindler v. Sorbitz (Mo. App.), 268 S.W. 432; 20 R.C.L. 846, sec. 51. (c) It is not necessary that a partnership have any name as such; and a firm name may be the full individual name of any partner. 30 Cyc. 419. (2) Brock's signature to the contract was all that was required to satisfy the Statute of Frauds in the selling of the said realty. Sec. 2169, R.S. 1919; 27 C.J. 299, 300; Salmon Falls Mfg. Co. v. Goddard, 14 How. (U.S.) 446; Sanborn v. Flagler, 9 Allen (Mass.) 474; Baxter v. Lustberg, 200 N.Y. Supp. 125; Donovan v. Brewing Co., 92 Mo. App. 345; Springer v. Kleinsorge, 83 Mo. 152.

Taylor R. Young and Frank X. Hiemenz for respondents.

(1) The paper which the plaintiff is pleased to denominate a contract was, under all the evidence, never delivered. Delivery is an essential element of every contract; it is the final act without which there can be no contract. 6 R.C.L. 642, sec. 58; 9 Cyc. 302; Copying Co. v. Muleski, 138 Mo. App. 419. (2) The undisputed testimony shows that the minds of the contracting parties never met. It is not even contended that Roberts ever agreed or consented to a sale at the price offered by plaintiff. There can be no contract without a meeting of the minds of the contracting parties. Green v. Cole, 103 Mo. 70; 9 Cyc. 245; Gron v. Calloway, 292 S.W. 66. (3) The alleged contract, upon which the suit is bottomed, is not signed by the parties to be charged therewith or some other person by them thereto lawfully authorized. Sec. 2169, R.S. 1919; Buxton v. Huff, 254 S.W. 80; Reigert v. Coal Co., 217 Mo. 142. (4) Even though it be contended that Brock was the agent of the owners and that his signature is of such character as to be binding upon him, it cannot bind the remaining defendants, because there is no evidence that he was authorized in writing by either Henner, Heidland or Roberts to execute for and in behalf of the defendants the contract sued on. Johnson v. Fecht, 185 Mo. 335; Mill & E. Co. v. Hines, 239 S.W. 896; Tracy v. Berridge, 180 Mo. App. 225. (5) Defendants' interests in the real estate in question, if anyone has any interest other than Roberts, is that of tenants in common, and one tenant in common may not bind his co-tenant to sell except upon the principle of agency, and this authority must be in writing. Johnson v. Fecht, 185 Mo. 335; 7 R.C.L. 879, sec. 75; 38 Cyc. 108, B. (6) Defendants were not partners, but were nothing more than joint adventurers in a single enterprise with two objects only in view, the one to buy and the other to resell at a profit. And the signature of one joint adventurer to an agreement to sell where signed but not delivered and not to take effect unless all the other joint adventurers sign, binds neither. Rogers v. Ramey, 137 Mo. 598; Fuller v. Laws, 271 S.W. 836; Young v. Emke, 242 S.W. 164; Fuel Co. v. Brady, 202 Mo. App. 551; Fehrenbach v. Stults, 206 S.W. 578; Jones v. Bruce, 211 S.W. 692; Donnell v. Harske, 67 Mo. 170; Musser v. Brink, 68 Mo. 242; Ellis v. Brand, 176 Mo. App. 383; Wittling v. Schrieber, 202 S.W. 418; Distilling Co. v. Wilson, 172 Mo. App. 612; Chapin v. Cherry, 243 Mo. 375; Hely v. Hinerman, 303 Mo. 147; Brown v. Houchin, 154 Mo. App. 261. (7) Specific performance is an extraordinary remedy and is not a matter of absolute right; but rests in the sound discretion of the court. Hallmann v. Conlon, 143 Mo. 378.

SEDDON, C.

Plaintiff (appellant) commenced this action in equity on December 7, 1925, in the Circuit Court of the City of St. Louis against Riley T. Brock, Emil E. Henner, Herman Heidland, John E. Roberts, and Fred Schumm, as defendants, seeking a decree for the specific performance of an alleged written contract for the conveyance of certain described real property situate in the city of St. Louis. The trial resulted in a decree and judgment, wherein the trial chancellor found the issues in favor of the defendants and that plaintiff is not entitled to the relief prayed in his bill, and wherein it was considered, adjudged, and decreed that plaintiff take nothing by his suit; that plaintiff's bill be dismissed; and that the defendants go hence without day and recover of plaintiff the costs of suit. After due procedural steps taken by plaintiff, he was allowed an appeal to this court from the decree and judgment so entered in the circuit court.

The substantive averments of the amended bill, or petition, upon which the cause was tried and submitted are as follows:

"Plaintiff for his cause of action states that at and prior to the 29th day of October, 1925, defendants as co-partners in a particular enterprise were the owners of a certain option contract held by them, whereby certain owners of a certain piece of property, hereinafter to be more specifically described, agreed to convey to said defendants said certain parcels or pieces of ground, located in the city of St. Louis and State of Missouri, and described as follows: [Here follows description.]

"That said parcels of ground as described herein were, upon the fulfillment of certain conditions, mentioned in the option contract held by defendants, to be conveyed to John E. Roberts for the use and benefit of all of the defendants herein and in furtherance of their partnership business of acquiring for the purpose of profit the afore-mentioned ground.

"That on or about the 29th day of October, 1925, defendants, through defendant Brock, defendant Henner and defendant Heidland, acting for and in behalf of all of the defendants, entered into a contract in writing with plaintiff whereby defendants agreed to convey to plaintiff the above-described property in consideration of the sum of twenty-six thousand dollars ($26,000); that said contract was in words and figures as follows, to-wit: [Here follows copy of alleged contract.]

"That said contract was signed by Riley T. Brock for all parties herein and delivered to plaintiff, but thereafter obtained from plaintiff by defendants, upon the representation made by defendants that said contract was desired for exhibition only to defendant Roberts, and upon the promise to return the same to plaintiff promptly, and said contract is not filed herewith because it is now and has been since that date in the possession of defendants.

"That plaintiff thereupon gave to defendants, and defendants received and accepted from plaintiff, his check, drawn on the Mercantile Trust Company of the city of St. Louis and State of Missouri, for five hundred dollars ($500) as earnest money and part payment on account of the above-mentioned and described piece of real estate.

"Plaintiff further states that thereafter, and on the 6th day of November, 1925, defendants became the absolute owners of the real estate afore-mentioned by deeds of conveyance executed to John E. Roberts for and in behalf of all of the defendants, and that said deeds of conveyance were duly filed of record in the office of the Recorder of Deeds of the city of St. Louis and State of Missouri, on November 10, 1925.

"Plaintiff further states that on the 28th day of November, 1925, being the date upon which the sale heretofore described in the contract entered into between plaintiff and defendants was to have been consummated and upon which date deed was to have been delivered to plaintiff and upon which date plaintiff was to pay to defendants the purchase price of said property; that although plaintiff was ready and willing to perform all of the covenants required by him to be performed by said contract, defendants failed and refused to make and deliver to plaintiff a deed to the afore-mentioned and described property, and still fail and refuse to make and deliver said deed to said property to plaintiff in consideration of the price agreed upon in the contract herein set forth.

"Plaintiff further states that the balance required by him to be paid to defendants on account of the purchase price of this property is twenty-five thousand five hundred dollars ($25,500), which said amount plaintiff herewith tenders to defendants."

The defendants Brock, Heidland and Henner answered jointly, upon their several oaths, denying generally all of the averments of the petition; and, further answering, the said defendants stated and averred that they and their co-defendant, Roberts, had been jointly interested in an option to purchase the real estate in controversy, but that said option to purchase said real estate had expired prior to the first day of September, 1925, since which date the said answering defendants have had no right, title or interest in said real estate. The answer of said defendants further avers that, although the defendant Brock did sign the said alleged contract of October 29, 1925, he "did not deliver it to the plaintiff, or to anyone that the defendants had reason to believe represented the plaintiff." The answer of said defendants specifically denies that the answering defendants, Henner and Heidland, and their co-def...