Montgomery v. Gahagan
| Decision Date | 30 November 1912 |
| Citation | 151 S.W. 453,246 Mo. 310 |
| Parties | PETER H. MONTGOMERY v. D. W. GAHAGAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court. -- Hon. James T. Neville, Judge.
Reversed and remanded.
A. D Bennett and A. J. Clarity for appellant.
(1) The circuit court of Greene county erred in passing upon the demurrer filed in that court so long as the order of the Newton Circuit Court, overruling the motion to strike out parts of the answer, remained unreversed, inasmuch as the points raised in the demurrer were identical with those raised by the motion to strike out, and had passed in rem adjudicatam. Baisley v. Baisley, 113 Mo. 545; Kisinger v. Council Bluffs, 73 Iowa 171; Rogers v. Holing, 46 Wis. 361; Sanderson v. Dailey, 83 N.C. 67; McDowell v. Railroad, 14 S.W. 338; Wells on Res Adjudicata & Stare Decisis (1878 Ed.), Secs. 2 and 6; Hermann on Estoppel and Res Judicata, Sec. 247. (2) An exception to ruling on a demurrer neither helps nor hurts as a demurrer will keep without an exception. Spears v Bond, 79 Mo. 467; Hannah v. Hannah, 109 Mo 236; Thorp v. Miller, 137 Mo. 238; McKenzie v. Donnell, 151 Mo. 431; Newton v. Newton, 162 Mo. 173; County v. Morgan, 163 Mo. 661; Mallinckrodt v. Memnich, 169 Mo. 388; Dysart v. Crow, 170 Mo. 275; Meissner v. Equip. Co., 211 Mo. 112; State v. Christopher, 212 Mo. 244; Houtz v. Hellman, 228 Mo. 655. (3) The circuit court of Greene county erred in sustaining the demurrer of plaintiff to the answer of the defendant, as the answer was properly drawn and the facts were properly pleaded. Springer v. Kleinsorge, 83 Mo. 152; Cohn v. Lehman, 93 Mo. 574; Ledbetter v. Ledbetter, 88 Mo. 60; Crowder v. Searcy, 103 Mo. 117; R.S. 1909, Secs. 1806, 1807, 2050; St. Louis v. Lumber Co., 98 Mo. 613; Swope v. Weller, 119 Mo. 556; Sampson v. Mitchell, 125 Mo. 217; Claybrush v. McLaughlin, 106 Mo. 521; Stump v. Hornbeck, 94 Mo. 26.
Barton J. Morrow for respondent.
(1) Appellant having failed to file a bill of exceptions, the action of the Newton Circuit Court in granting a change of venue, as well as the matters set up in a motion to strike out, are not before this court. (2) The vendee in an executory contract, who fails to perform his part of the contract, cannot recover for improvements placed upon the land; such recovery can only be had for the vendor's fault; the vendee cannot set up his own default and failure as a reason for equity granting relief. Sedgwick & Worth, Trial of Title, 708; 16 Ency. Law, p. 97; Railroad v. Crawford, 68 Mo. 80; Luckett v. Williams, 37 Mo. 388; Bedford v. Burton, 106 U.S. 388; Toplift v. Shadwell, 74 P. 1120; Keister v. Cubine, 45 S.E. 285; Rose v. Perkins, 98 Mo. 258; Rainer v. Huddleston, 4 Heisk. 223; Long v. Finger, 74 N.E. 502; Young v. Pate, 3 J.J. Marsh, 101; Farham v. Davis, 32 N.H. 302. (3) Appellant having made default in his payments, respondent was entitled to possession of the property and could recover in ejectment. Gibbs v. Sullens, 48 Mo. 237; Fulkerson v. Brownlee, 69 Mo. 371; Rose v. Perkins, 98 Mo. 258; DeBarnardi v. McElroy, 110 Mo. 657. (4) Even if appellant was entitled to recover for improvements, such recovery would only go to release the amount of damages found by the court to be one cent. Dawkins v. Griffin, 195 Mo. 430.
This is an action in ejectment, instituted January 15, 1907, in the Newton County Circuit Court, to recover a piece of ground in the city of Seneca in that county, on which a flour mill was situated.
The defendant filed an answer, in which he denied specially that plaintiff was entitled to possession of the premises, and generally denied "each and every allegation contained in said petition except what is hereinafter specially admitted." For further answer it stated that the defendant was placed in possession of the premises under a contract executed by plaintiff to sell and convey the same to defendant, and set forth a true copy thereof. It is dated June 30, 1905, signed by the plaintiff and his wife as parties of the first part, who, by its terms, agreed that if defendant, the party of the second part, should first make the payments and perform the covenants therein contained to be kept and performed by him, they would convey to him the premises in fee, clear of incumbrances, by warranty deed. The defendant was to pay the sum of $ 3000 in twelve semi-annual payments, due respectively on the first days of January and July of each year, beginning January 1, 1906, the last being due July 1, 1911, without interest. It was further provided as follows: "And in case of the failure of said party of the second part to make either of the payments or perform any of the covenants on his part hereby made and entered into, this contract shall, at the option of the parties of the first part, be forfeited and determined, and the party of the second part shall forfeit all payments made by him on this contract, and such payments shall be retained by the said parties of the first part in full satisfaction and in full liquidation of all damages by them sustained and they shall have the right to re-enter and take possession of the premises aforesaid; and it is mutually agreed by and between the parties hereto that in construing this contract time shall be an essential." These payments were evidenced by promissory notes, payable as stated above. The answer then proceeded to state that the premises in suit consisted of lands on which was situated a small steam flouring mill in a crude, unfinished and dilapidated condition, erected in 1901; that it was operated for a year or more and then abandoned for about two years, and, at the time of its purchase by defendant, had so deteriorated as to be almost valueless; that its abandonment by plaintiff was brought about by financial embarrassment due to the incapacity of the mill to earn a profit without large improvements and additions to its equipment, and plaintiff consented and agreed that the improvements must be made before it could be successfully operated; that by reason of these facts plaintiff sold to defendant and put him in possession of the mill on deferred payments without interest, and that defendant would have to expend large sums of money in rebuilding and improvements and additions to said mill, and it was agreed that defendant would add a complete and finished corn milling plant, a large platform wagon scales with dump and suitable shed over the same, with corn drag and wheat conveyors from said dump, and additional elevators in the mill; "that in consideration of the improvements and additions to be made on said mill and in consideration of the very large expenditure of money by the defendant, the plaintiff sold to defendant the said milling plant and the land as described as aforesaid without the payment of any sum of money in advance by defendant to plaintiff, it being agreed and understood that said improvements and additions were absolutely necessary to put the mill in a serviceable condition; that it was agreed and understood by and between the plaintiff and defendant that said improvements and additions to be made at the cost and expense of the defendant would amply secure the plaintiff for any default in the deferred payments of the notes of the defendant as aforesaid; that it was agreed and understood by and between the plaintiff and defendant that until said mill was placed in a condition to earn a profit, by making the improvements and additions as aforesaid, it would be impossible for the defendant to pay off and discharge and extinguish his said notes or any of them; that the defendant did on being placed in possession of the premises as aforesaid by plaintiff, diligently proceed, at once, in good faith to the building and completion of all the aforesaid improvements and additions, and many more, under the contract and agreement by and between the plaintiff and defendant as aforesaid, at his own expense, and, did as rapidly as possible and practical under the circumstances, put the milling plant in perfect repair and good order for successful operation; that all of said improvements and additions were made with the full knowledge and consent and contract and agreement of the plaintiff."
It then set out an itemized account of the money so expended between the date when defendant took possession of the mill and November 2, 1905, amounting to $ 1822.98, and stated that defendant had paid cash, on the notes without giving dates therefor amounting to $ 175, and that the mill was worth $ 2500 more than at the time of the purchase, and that defendant went into possession and made the said improvements by the authority of the plaintiff, and did not hold adversely to plaintiff but under and by authority from him, and that there were no other writings between them than the contract and notes mentioned. The answer asked judgment for the sum of $ 1997.90, the amount of the expenditure for improvements and cash paid on the notes, less any amount that might be found by the court to be due for rent, and that the sum be adjudged and declared a first lien on the real estate described in the petition, including the milling plant thereon, and that plaintiff be enjoined and restrained, "or that execution be stayed by order of record of this court until such time as the plaintiff shall have paid to the defendant the amount of his judgment and filed the receipt of the defendant therefor with the clerk of this court; that all of defendant's notes described in the plaintiff's articles of agreement be cancelled and for naught held and esteemed by the order and judgment of this court, and for such other and further relief as may be proper." The plaintiff then filed his motion to strike out "the following portion of defendant's answer, viz.:...
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