Mueninghaus v. James

• Decision Date: 19 February 1930
• Docket Number: No. 28854.,28854.
• Parties: LOUIS A. MUENINGHAUS, JERRY O'NEIL, JAMES P. HYDE, MRS. M. SCHUERFIELD and LOUIS BERKIN, Appellants, v. JULIA P. JAMES, JOSEPH FRANK HADDOCK and CARRIE HADDOCK, His Wife.
• Court: Missouri Supreme Court

24 S.W.2d 1017

LOUIS A. MUENINGHAUS, JERRY O'NEIL, JAMES P. HYDE, MRS. M. SCHUERFIELD and LOUIS BERKIN, Appellants, v. JULIA P. JAMES, JOSEPH FRANK HADDOCK and CARRIE HADDOCK, His Wife.

No. 28854.

Supreme Court of Missouri, Division No. 2.

February 19, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. Moses Hartmann, Judge.

AFFIRMED.

Albert C. Davis and John B. Sullivan for appellants.

(1) The amended petition states facts sufficient to constitute a cause of action. (a) The contract is in writing. (b) It is founded upon a sufficient consideration. 6 R.C.L. 676, sec. 84; 13 C.J. 327 (sec. 170); 13 C.J. 315 (sec. 150); Fleming v. Mulloy, 143 Mo. App. 309. (c) The defendants who did not sign the contract had actual notice. (2) Actual notice of an incumbrance upon real estate dispenses with recording. R.S. 1919, sec. 2200; Gross v. Watts, 206 Mo. 394; Hobe v. Hubb, 94 Mo. 498; Bartlett v. Glasscock, 4 Mo. 62; Vaughn v. Tracy, 22 Mo. 415; Sensenderfer v. Kemp, 83 Mo. 581; Vaughn v. Tracy, 25 Mo. 318; Speck v. Riggin, 40 Mo. 405; Foster v. Breshears, 55 Mo. 22; Harrington v. Fotner, 58 Mo. 473; Wilson v. Kimmel, 109 Mo. 260; Traffe v. Kelly, 110 Mo. 137; Meier v. Blume, 80 Mo. 179. (3) A written contract is presumed to be founded upon a consideration, as a matter of law; therefore a petition which fails to state the consideration for a contract is not demurrable. A failure of consideration is a matter of affirmative defense. Lawson on Contracts (Ed. 1893) sec. 91, p. 102, note 5; Secs. 1404, 2159, R.S. 1919; Winter v. Ry. Co., 160 Mo. 159; Bosley & Bro. v. Bosley, 85 Mo. App. 424; Lamp Co. v. Mfg. Co., 64 Mo. App. 115. "A contract in writing and signed by the party to be charged imports a consideration, and it is not necessary to plead a consideration in the petition." Montgomery v. Montgomery, 142 Mo. App. 481; Fleming v. Mulloy, 143 Mo. App. 309; Underwood Typewriter Co. v. Realty Co., 220 Mo. 522; Hudson v. Browning, 264 Mo. 58; Powell v. Railroad, 255 Mo. 420; Wallace v. Workman, 187 Mo. App. 113.

Keil & Keil and Frank Coffman for respondent Julia P. James.

The trial court's action in sustaining the demurrer to the amended petition was not erroneous, for the amended petition failed to state facts sufficient to constitute a cause of action against respondent Julia P. James, because: (a) The petition, upon its face, shows that respondent Julia P. James was not a party to the alleged agreement, and also that no restrictions appeared upon the records. Therefore such restrictions are not enforceable against her. (b) Nor does Sec. 2200, R.S. 1919, have any application, because there is no allegation in the petition that there was a deed of conveyance or other agreement affecting this real estate executed and acknowledged, but not recorded; but that there was an agreement to execute a restriction agreement merely. (c) The petition does not allege that plaintiffs own any real estate, either adjacent to or in the vicinity of that in question, or that they own any real estate at all, or that plaintiffs are interested, directly or indirectly, in the real estate in question, and, therefore, it does not occur that such contract is susceptible of enforcement on behalf of plaintiffs. (d) Said petition fails to state what property was to be restricted, if said agreement had been signed, executed and recorded. (e) Said petition fails to allege what covenant of restrictions would have been approved. (f) Nor does it allege that any covenant of restrictions was approved. (g) It fails to state what the limit should be on said restrictions in point of time. (h) Said petition shows that the property was that of respondents Joseph Frank and Carrie Haddock, and that the agreement was that they should restrict their own property, but does not allege that plaintiffs were interested, either directly or indirectly, in it. Hence, it affirmatively appears that there was neither a consideration nor forbearance, and, therefore, such contract could not be susceptible of enforcement on behalf of the plaintiffs. (i) The alleged contract, set forth in the petition, is so far lacking in the elements of certainty and mutuality as between plaintiffs and Joseph Frank and Carrie Haddock that same could not be enforced by a court of equity in favor of plaintiffs against said Joseph Frank and Carrie Haddock, and, therefore, it would not be susceptible of enforcement by these plaintiffs against Julia P. James. (j) The alleged agreement sought to be enforced against respondent Julia P. James, as appears from the petition, was an executory contract, resting on personal covenants and obligations, alleged to have been entered into and assumed by Joseph Frank and Carrie Haddock, and, therefore, a court of equity could not compel respondent Julia P. James, who was not a party to it, to fulfill the alleged contract for the benefit of plaintiffs.

Neuhoff & Millar for respondents Joseph Frank Haddock and Carrie Haddock.

(1) The amended petition fails to state facts sufficient to constitute a cause of action. No contract is pleaded. (a) No consideration is pleaded. The contract purported to be alleged in appellants' petition does not import a consideration. Sec. 2160, R.S. 1919; Glasscock v. Glasscock, 66 Mo. 627. The amended petition fails to plead any consideration for the alleged contract upon which appellants' action is founded. In the absence of statutory relief from the rule, one declaring on a contract, which at common law does not import a consideration, must state the consideration, and failure to do so renders the petition fatally defective. 13 C.J. 722, sec. 839 (1) and annotations 91 and 92; Sutherland on Code Pleading, sec. 227; Gunn v. Fryberger, 176 Pac. 248, 71 Okla. 170; McDonald v. Tetrault, 185 N.W. 952, 151 Minn. 61; Radford v. Jamison, 221 S.W. 998; Davis v. Snyder, 147 N.E. 30, 252 Mass. 29. (b) No mutuality of assent or agreement is pleaded. The amended petition fails to plead any mutuality of agreement or obligation in the alleged contract to enter into a deed of restrictions, which is essential to create a contractual obligation. The writing relied on is a mere nudum pactum. The writing set out as the foundation of appellants' contractual action lacks consideration, mutuality and definiteness or certainty of subject-matter. 13 C.J. 329, par. 172; Binion v. Browning, 26 Mo. 270; Hudson v. Browning, 264 Mo. 58; Cherry v. Chorn, 299 S.W. 598. (2) The amended petition is without equity. (a) No facts are pleaded warranting specific performance. The alleged contract sought to be enforced is not based on a valuable consideration, lacks mutuality of assent, its terms are not certain and its enforcement is not practical or possible. (b) There is a failure to join one C.F. Fugate, a necessary party. 36 Cyc. 769; Story, Equity Pleading (10 Ed.) pars. 72, 81; Leyden v. Owen, 150 Mo. App. 102; 21 C.J. 273, secs. 276, 277. (c) The purported contract is unenforceable. One tenant by the entirety cannot restrict jointly owned property. Secs. 315, 321, 326, 5853, R.S. 1919; McCreery v. Lewis, 114 Mo. 582; Mundy v. Shellaberger, 161 Fed. 503; 30 C.J. 569, notes 45, 46; Mahan v. Ruhr, 293 Mo. 500. Restrictions that are against public policy or that attempt to impose an unreasonable restraint on alienation of real property by restraining in perpetuity, without time limit, both the use and alienation in any manner, are unenforceable. Porter v. Barrett, 233 Mich. 373, 206 N.W. 532, 42 A.L.R. 1267; Schulte v. Starks, 238 Mich. 102, 213 N.W. 102.

WHITE, J.

The plaintiffs filed in the Circuit Court of the City of St. Louis, November 10, 1927, their first amended petition as follows:

"Plaintiffs, leave of court being first had and obtained, for their amended petition against the defendants state that at all the time and times hereinafter mentioned, Joseph Frank Haddock and Carrie Haddock were husband and wife, and are residents of the County of St. Louis and State of Missouri; that the defendant Julia P. James is a person of colored or negro blood, and is a resident of the city of St. Louis, Missouri.

"Plaintiffs further state that on or about the 30th day of January, A.D. 1923, the defendants Joseph Frank Haddock and Carrie Haddock, his wife, were in the possession of, and were the owners of, certain tract or parcel of land situated in the city of St. Louis, State of Missouri, described as follows, to-wit:

"South five (5) feet, lot eight (8), and north thirty (30) feet, lot nine (9), block five (5), Aubert Place, fronting thirty-five (35) feet east line of Bayard Avenue by a depth east one hundred and seventy (170) feet to an alley, and in city block 3771, and known as number 1228 Bayard Avenue.

"That the said defendants, the said Joseph Frank Haddock and Carrie Haddock, his wife, being desirous of restricting the said real estate above described, made and entered into a contract and agreement with plaintiffs and one C.F. Fugate, as follows, to-wit:

"`We, the undersigned owners of the property as noted opposite our names, agree to sign the covenant as approved by the Fountain Park Improvement and Protective Association for the purpose of restricting the sale of said property to undesirable people and certain undesirable businesses, as per the following paragraphs noted in said covenant:

"`First. Erect, maintain, operate or permit to be erected, maintained or operated any slaughter house, junk shop or rag-picking establishment on any of the parcels of land belonging to parties of first part and hereinabove described.

"`Second. Sell, convey, lease or rent to a negro or negroes, or deliver possession to or permit to be occupied by a negro or negroes (no matter how the right to occupancy or title shall be attempted to be acquired) any of the said parcels of land belonging to parties of the first part and hereinabove described, or any part thereof or any interest therein.'

"Said agreement is herewith filed and marked `Exhibit A' and...