Moore v. Granby Mining & Smelting Co.

• Decision Date: 31 October 1883
• Citation: 80 Mo. 86
• Parties: MOORE v. THE GRANBY MINING AND SMELTING COMPANY, Appellant.
• Court: Missouri Supreme Court

80 Mo. 86

MOORE

v.THE GRANBY MINING AND SMELTING COMPANY, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

REVERSED.

Harding & Buler for appellant.

Reynolds & Hilliburton for respondent

EWING, C.

This suit was commenced January 13th, 1880, by filing a petition in substance: That in 1870 the plaintiff was in possession of forty acres of land in Cherokee county, Kansas; that defendant, by one J. Morris Young, who was defendant's agent and superintendent at Oronogo, Missouri, applied to plaintiff to purchase his interest in the land, and thereupon plaintiff sold his interest to said Young for $350, of which amount $175 was paid, and the other $175 was to be paid whenever said Young or his assigns should obtain the full title to the land; that the title was in dispute, and consequently it was agreed between said Young and plaintiff that the trade was to be kept secret, and he was to assist said Young in perfecting the title; that the title was finally settled to be in one Joy, and on the 29th day of August, 1870, said Young contracted with said Joy for the legal title, paying $20 cash, and agreeing to pay the balance in six annual payments; first, January 1st, 1873; and was to receive a deed therefor upon final payment which would be in January, 1879; that said Young all along acted as agent for defendant, who furnished all the money, and that he immediately transferred said contract to defendant, and plaintiff delivered possession of the land to defendant, and defendant has received a deed, and that the balance of the said purchase money “owing to plaintiff is due and unpaid.” Therefore he prays judgment for $175 and interest from August, 1879.

The answer was a general denial and a plea of the statute of limitations, that the suit was not commenced within five years after the cause of action accrued.

The plaintiff introduced J. Morris Young, who testified in substance that he was superintendent of defendant in 1868 and up to 1878. In 1868 the company wanted to buy some coal land. It ascertained the southeast quarter of the northwest quarter section 14, township 33, range 25, contained coal and was in possession of plaintiff Moore, who had a settler's right thereto. The land was in Kansas. Moore had a cabin and farm and had opened a coal bank; I bought the land from him for the company and took a bond from him, which is as follows:

“Know all men by these presents, that I, B. A. H. Moore, as principal, and Wilson Brayles, his security, acknowledge ourselves to be indebted and justly owe to J. Morris Young the sum of $700, for the payment whereof we bind ourselves, etc., etc. June 26th, 1868. Witness our hands and seals, etc. Conditioned that, whereas, said Moore has contracted to sell to J. Morris Young the said land (describing it) for $350, of which $175 has been paid, and the remainder is to be paid when the said Moore makes to said Young a title good and sufficient in law to said land; said Young to furnish said Moore with whatever sum of money might be necessary to pay to whoever may under the law be entitled to it. Now, if the said Moore shall execute and deliver a good and valid title to said land to said J. Morris Young, upon his obtaining such a title to the same from the person or persons who will be legally empowered to make such title to him, and also will use all necessary and legal steps, and also use due diligence to and in obtaining such title to said tract of land, then this obligation to be null and void, else to remain in full force and virtue.”

I paid $175 down; when the Granby company got the title the other $175 was to be paid. I was acting for the Granby company, and assigned the contract to them. Moore helped to get the title. I had some correspondence with Moore, and always referred the letters to the office at St. Louis. I wrote the following letters to Moore:

“ORONOGO, MO., December 23rd, 1870.

B. A. H. MOORE.

Dear Sir: Your letter of recent date duly received. You will not be required to do anything except to aid us in getting the title to the land. I will want you to go with me to Ft. Scott before very long, to see the railroad company about it. * * Meanwhile all you have to do is to keep still and wait developments, and directions from me.” And the next one was to the effect that he had received Moore's letter, referred it to the “head office of the company at St. Louis. * * That Mr. Blow, our president, was absent, and when he returns it would receive the proper consideration.”

This letter was dated December 16th, 1874. Moore wrote to me often. I would write to the company putting him off, and tell him it would be fixed all satisfactorily. Moore came to see me in 1879. I wrote the railroad company as to condition of title, and learned then that the land had been deeded to defendant, of which I informed Moore, and this, I think, is the first he knew of defendant having the legal title.

Plaintiff then offered a deed in evidence from the Missouri River, Ft. Scott & Gulf Railroad to defendant for the Moore land, dated September 10th, 1873. Plaintiff then read the deposition of Jno. A. Clark, who said he was land commissioner of the Kansas City, Ft. Scott & Gulf Railroad Company; that he contracted the land to J. Morris Young, and the contract was assigned by him to the Granby Mining & Smelting Company on April 17th, 1871. The contract price was $5 per acre, $20 cash, balance in six equal annual installments. The land was deeded to the Granby company September 6th, 1873.

There was judgment for plaintiff, and the case is here by appeal on the part of the defendant.

I. The first point insisted on for a reversal is, that the suit is founded upon a contract under seal, between plaintiff and one J. Morris Young,...