Mueller v. Wall

• Decision Date: 08 May 1923
• Docket Number: No. 17718.,17718.
• Citation: 251 S.W. 119
• Parties: MUELLER v. WALL et al.
• Court: Missouri Court of Appeals

251 S.W. 119

MUELLER v. WALL et al.

No. 17718.

St. Louis Court of Appeals. Missouri.

May 8, 1923.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Suit for specific performance by Walter Mueller against Richard B. Wall and others. Judgment for plaintiff and defendants appeal. Reversed and remanded, with directions.

Taylor, Mayer & Shifrin, of St. Louis, for appellants.

Charles A. Lich, of St. Louis, for respondent.

BECKER, J.

This is a suit in equity brought by Walter Mueller, plaintiff below, against Richard B. Wall, Anthony Stevens, Hon. George Grassmuck, Isaac Archshoefer, and Mrs. Richard B. Wall, as defendants, the object of which is to procure specific performance of an alleged agreement to sell certain real estate, or, in lieu thereof, to obtain a judgment for damages for failure to perform the terms and conditions of the alleged contract of sale, on which the suit for specific performance is based.

Plaintiff's petition alleges that Anthony Stevens holds the paper or record title, and the defendant Richard B. Wall is the real owner of a certain piece of real estate in St. Louis known as 2842 Belt avenue; that the defendant Archshoefer represented himself to be the agent of the said defendants, Mr and Mrs. Wall, with authority to soill said property; that, despite the statements of Archshoefer that he was acting as agent of defendants Mr. and Mrs. Wall, the contract of sale was made out in the name of the said defendant Archshoefer.

The petition then sets out the terms of the contract, and states that the plaintiff has complied with all of the conditions of said contract; that a demand for a warranty deed has been made upon the defendant Archshoefer, and that he has refused to deliver such a deed.

The petition further alleges that plaintiff, at the time he brought suit, was occupying the said real estate, and that since October 2, 1018, when he had purchased the property for the sum of $1,500, the value thereof has greatly increased, and at the time of the filing of the suit the reasonable market value of said property was over $3,500.

The petition then alleges that, in the month of March, 1920, defendants Richard 3. Wall and Anthony Stevens had filed suit for the rent and for possession of the above-described premises before Justice of the Peace Honorable George Grassmuck; that plaintiff filed the necessary statutory defense setting up the plea that title to the real estate was involved, whereupon the said justice certified the case to the circuit court of the city of St. Louis, and that thereafter the defendants Wall and Stevens filed a motion in the circuit court to remand the case to the justice, which motion was sustained, and the case remanded to the justice court for further proceedings.

The petition further avers that plaintiff has no right of appeal from the order of the circuit court remanding the case as aforesaid, and that the plaintiff is unable to make proper defense in the proceeding before the justice of the peace for the reason that the justice court is without equitable jurisdiction and without jurisdiction to try out the matter of title to the said real estate.

The petition then contains the necessary averments that the plaintiff is without adequate remedy at law, and, that unless equity intervenes, and restrains and prohibits the justice from proceeding with the trial of the cause, he will suffer irreparable injury. The petition then prays for an order restraining the justice from proceeding further with the case; that the circuit court try out the equitable issues presented by the pleadings; that the court will order and compel specific performance of the contract of sale by requiring the defendants to execute a deed to plaintiff for the said premises, or, in the alternative, that the court will enter a money judgment against the defendants for the damages sustained by plaintiff by reason of the failure of defendants to carry out the terms and conditions of said contract of sale; that the court will restrain the defendants from disposing of or incumbering the property pending litigation; and that the court will make such further orders from time to time touching the premises as to the court shall seem meet and proper.

The defendant Archshoefer filed an answer setting up that the defendant Richard B. Wall had requested and authorized him, as his agent, to sell and dispose of the property in question, and that he did on the 2d day of October, 1918, enter into the contract set out in plaintiff's petition for and on behalf, however, of the defendant Richard B. Wall; that all of the said acts were done with the knowledge and consent of the defendant Richard B. Wall, and that the plaintiff was advised and knew that the defendant Archshoefer was acting for and on behalf of the said defendant Wall in effecting said sale, and that the plaintiff dealt with the said defendant Archshoefer with full knowledge of his agency.

The...