Montgomery v. Wise

• Decision Date: 31 May 1909
• Citation: 120 S.W. 100,138 Mo.App. 176
• Parties: GEORGE W. MONTGOMERY, Respondent, v. CHARLES WISE et al., Appellants
• Court: Kansas Court of Appeals

120 S.W. 100

138 Mo.App. 176

GEORGE W. MONTGOMERY, Respondent, v. CHARLES WISE et al., Appellants

Court of Appeals of Missouri, Kansas City

May 31, 1909

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

AFFIRMED.

Judgment affirmed.

Daniel B. Holmes and Henry C. Page for appellants.

The action is grounded on an alleged express promise by defendants to return to plaintiff the $ 1,200 which he had paid to them, with interest thereon. But if the petition be regarded as counting on the contract or a rescission thereof the same result will follow. Olmstead v. Smith, 87 Mo. 602; Pursley v. Good, 94 Mo.App. 390; Easton v. Montgomery (Cal.), 27 P. 283; Davis v. Banda-Ghio R. E. Co., 115 Mo.App. 339; Building Assn. v McTague, 31 A. 727; Woodward v. Van Hoy, 45 Mo 301. The policy of our code of procedure is to require the party to state in his pleadings his real ground of action or defense; and if he chooses one ground, he cannot so enlarge it as to recover on another. O'Brien v. Loomis, 43 Mo.App. 35. The same principle is enunciated in many other cases: Latapie-Vignaux v. Saddlery Co., 193 Mo. 14; Stonebreaker v. Railroad, 110 Mo.App. 504; Galm v. Railroad, 113 Mo.App. 593; Railroad v. Kimmel, 58 Mo. 84; Stix v. Mathews, 75 Mo. 99; Haines v. Trenton, 108 Mo. 130.

Eastin & Corby for respondent.

Plaintiff's action is assumpsit for money had and received. Maxwell on Code Pleading, 247. 1 Words and Phrases, p. 588, citing Rushton v. Davis, 127 Ala. 279, 28 So. 476; King v. Martin, 67 Ala. 177. "The count for money had and received is a very important one, and in some respects, differs from all other common law actions. Green & Meyer on Missouri Practice and Pleading, sec. 256; Mansur v. Botts, 80 Mo. 657; Williams v. Railway, 112 Mo. 491; Moore v. Gaus Mfg. Co., 113 Mo. 107; Redman v. Adams, 165 Mo. 70; Fox v. Pullman Car Co., 16 Mo.App. 127; Crump v. Rebstock, 20 Mo.App. 39; Floerke v. Distilling Co., 20 Mo.App. 77; Suits v. Taylor, 20 Mo.App. 174; Legg v. Gerardi, 22 Mo.App. 159; Suddoth v. Bryan, 30 Mo.App. 37; Brierre v. Sugar Co., 102 Mo.App. 628; Richardson v. Drug Co., 92 Mo.App. 520; Keith v. Ridge, 146 Mo. 90; Banking Co. v. Donovan Com. Co., 195 Mo. 288.

Stewart Taylor also for respondent.

The action for money had and received is a quasiequitable one, and appeals to the conscience of the court wherever the defendant has received money which in equity and good conscience should be restored to the plaintiff. Winningham v. Fancher, 52 Mo.App. 458; Railway v. McLiney, 32 Mo.App. 166; Jacoby v. O'Hearn, 32 Mo.App. 566; Clark v. Bank, 57 Mo.App. 285; Gwin v. Smurr, 101 Mo. 553. Although the promise to pay is implied, it must be pleaded as a fact. Long Bros. v. Armsby, 43 Mo.App. 261. Failure to object to the petition before trial prevents any criticism of it now. When the appellants by their own act disabled themselves from performing their contract, by failure to provide a prepayment clause in the Duncan mortgage, they gave the respondent the right to rescind. Bales v. Roberts, 189 Mo. 49; Nothe v. Noomer, 54 Conn. 326; Morange v. Morris, 34 Barb. 315; Erie v. Vincent, 8 Watts 510; Lyon v. Annable, 4 Conn. 350; Insurance Co. v. Trust Co., 44 L.R.A. 231.

OPINION

BROADDUS, P. J.

This is a suit for money had and received and grows out of the following contract:

"WISE AND STERN.

"SALE CONTRACT.

"This agreement, made and entered into this 23rd day of September, 1904, by and between Wise & Stern of Kansas City, Jackson county, State of Missouri, parties of the first part, and G. W. Montgomery of Buchanan county and State of Missouri, party of the second part:

"Witnesseth, That in consideration of four thousand ($ 4,000) dollars, to be paid to the parties of the first part by said party of the second part in sums and at times hereinafter set forth, parties of the first part agree to sell and convey or cause to be conveyed by good and sufficient warranty deed, and party of the second part hereby agrees to buy a certain piece, parcel or tract of land situated in Lane county and State of Kansas, more fully described as follows, to-wit: The south one-half and the northeast one-fourth of section six, township seventeen, range thirty, and containing four hundred and eight acres, more or less, according to government survey.

"And in consideration of said premises, the said party of the second part agrees to pay to the parties of the first part the aforesaid sum of four thousand ($ 4,000) dollars, as follows: Twelve hundred ($ 1,200) dollars cash in hand paid, receipt whereof is hereby acknowledged; the balance to be secured by mortgages on the above described property, payable one hundred ($ 100) dollars, or any multiple thereof at any interest paying date, and all to become due in five years, with interest at six per cent. The parties of the first part to furnish a good tenant on the above described property for the season of 1905, and the party of the second part agrees to pay for plowing now done at $ 1.25 per acre, and wheat now planted at same rate.

"The said parties of the first part shall furnish to the party of the second part, abstracts showing in them or from whom the deed is to come, a good and merchantable title, and the party of the second part shall have ten days in which to examine said abstracts, and shall return the same to the parties of the first part, together with his objections set out in writing, and the said parties of the first part, shall have a reasonable length of time thereafter in which to correct any defects or objections raised to the said title, the nature and kind of said objections to be taken into consideration in the length of time to be given to the parties of the first part in correcting and remedying the same.

"It is further agreed that should the title of said premises not be merchantable at the time herein set for the closing of this contract, then the parties of the first part shall have sufficient time thereafter to correct all such defects, either by suit to quiet title or otherwise, but in no event shall the closing of this contract be delayed beyond the date herein set forth, on account of any defects of title, providing the first parties shall at the same time and place execute to the second parties a bond in the penal sum of said purchase price to indemnify the second parties against all damages, should the first parties fail to make the title merchantable, as aforesaid.

"However, if a merchantable title to said land cannot be secured, then the party of the first part are to return all money paid by the said second part, and this contract shall become null and void.

"All payments are to be made at the office of Wise & Stern, or at any bank they may designate.

"It is further agreed that time shall be the essence of this agreement, and if the party of the second part shall fail to make the payments of the several sums of money, or any or either of them, or any part thereof, or default shall be made in any way of the covenants herein to be by said party of the second part, kept or performed, then at the election of the parties of the first part this agreement shall be declared null and void, and all sums paid by the party of the second part shall be forfeited to said parties of the first part.

"This contract is made subject to the approval of the owner.

"In witness whereof, we, the undersigned, hereby bind ourselves, our heirs and executors to the fulfillment of this contract. Witness our signatures in duplicate the day and year first above written.

"WISE & STERN, by (Seal)

"A. D. ATKINS, (Seal)

"G. W. MONTGOMERY, (Seal.)"

The plaintiff paid to the defendants the sum of $ 1,200 as stated in the agreement at the time of its execution. Nothing was done in the matter until October 30th, when plaintiff wrote a letter to defendants making inquiry why the abstract to the land had not been sent to him. On the 1st day of November defendants wrote to plaintiff asking when and where one of their representatives could meet him for the purpose of submitting to him and his attorney the abstract in question. This letter was answered on November 3rd by Vinton Pike, who had been retained by plaintiff to examine the abstract, with the request that if defendant would send it to him he would examine it immediately and report to them and also to the plaintiff. On the 4th of November, the defendants mailed the abstract to Mr. Pike with a letter in which they asked, if the title was satisfactory, to notify them and they would send mortgages and notes to be executed by plaintiff and wife, and the letter contained the following: "The $ 1,650 mortgage has been placed on the land since Mr. Montgomery purchased same, and he will only be required to give us a mortgage for the amount due according to the contract." On the 9th of November, Mr. Pike wrote plaintiff that he had examined the abstract and found that it showed a good title to C. F. Duncan subject to a mortgage of $ 1,650, and that he would so advise plaintiff; and also stating that, "There will be a discrepancy between the terms of his contract and your proposed execution of it, in that the contract provides that he may pay off the mortgage debt in installments before due. This provision it seems would not apply to the mortgage made by Mr. Duncan." On the next day, the defendants wrote Mr. Pike a letter in which they refer to the Duncan mortgage and the discrepancy between it and the contract, and stating that "we will have no trouble in getting Mr. Masemore (the mortgagee) to give Mr. Montgomery a statement wherein he will agree to take $ 100, or any multiple thereof, at any interest paying day. Please advise us at your earliest convenience if this will be satisfactory." At the same time they enclosed a...