Neville v. Hughes

• Decision Date: 16 February 1904
• Citation: 104 Mo. App. 455,79 S.W. 735
• Parties: NEVILLE v. HUGHES.
• Court: Missouri Court of Appeals

79 S.W. 735

104 Mo. App. 455

NEVILLE v. HUGHES.

St. Louis Court of Appeals. Missouri.

February 16, 1904.

SALES—INDEPENDENT COVENANTS—WARRANTY OF TITLE—WRITTEN CONTRACT —ORAL EVIDENCE.

1. A covenant by one selling a newspaper plant, warranting the title, and a covenant by the purchaser to continue the publication for a year, were not mutually dependent, but mere separate and distinct obligations.

2. A seller of property is liable on his warranty of title, though the purchaser knew at the time that the title was not perfect.

3. Where a written contract for the sale of a newspaper plant was complete in itself, and the seller warranted the title, in an action by the purchaser on the warranty parol evidence was inadmissible to show that part of the consideration had been the purchaser's agreement to publish the paper for a certain time, which he had not done.

4. Defendant sold plaintiff a newspaper plant, warranting the title. The plant was replevied by a third party, and in an action on the warranty defendant sought to show by parol that his title to the property had been conditional on an agreement between himself and the third person whereby defendant should publish the paper for a certain time, and that plaintiff had agreed to so publish it; the theory being that such evidence would show the sale from defendant to plaintiff to have been a conditional one. Held that, as the contract was written, and complete in itself, such evidence was not admissible.

Appeal from Circuit Court, Lawrence County; H. C. Pepper, Judge.

Action by H. Clay Neville against H. H. Hughes. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Jas. R. Vaughan, for appellant. J. T. White, for respondent.

Statement.

REYBURN, J.

For cause of action plaintiff, Neville, averred a purchase, December 29, 1898, from defendant, of the Springfield Weekly Mail and printing plant for $500; that by the contract of sale, a copy of which was exhibited, defendant, Hughes, by his covenant therein guarantied the conveyance of a clear title to said property to plaintiff; that defendant did not have a clear title thereto, but it was conditional and qualified in this: that one Harrington had an interest in such property, valid and subsisting at time of the purchase; that on the 9th of January, 1900, Harrington commenced an action in replevin against plaintiff and defendant in the circuit court of Greene county to recover the above property, and plaintiff appeared therein, and filed a separate answer, admitting that at time of filing the complaint he was in possession of the property, and denying the other allegations, and affirming that he was then and at time of service of the writ owner of the property, entitled to its possession, and demanded its return; that he further notified Hughes to defend the action, and the latter filed a disclaimer, denying that he was in possession, and asking to be discharged; that upon trial in the circuit court of Wright county, by change of venue, it was adjudged that Hughes did not have a clear title to the property, but that Harrington was its lawful owner, and the judgment rendered by such circuit court establishing such fact was affirmed by the St. Louis Court of Appeals, thereby finally determining that on the 29th day of December, 1898, defendant did not have a clear title to the property, but that it was subject to the conditions and agreements contained in the contract between Hughes and Harrington, and by reason of such contract Hughes' title to such property was conditional and qualified, and the title of plaintiff therein failed, to plaintiff's damages as detailed, for which judgment was asked. In defense the defendant answered that on the date named he sold plaintiff the newspaper and plant, including subscription list, good will, etc., for the sum specified, and then and prior thereto he was the owner of the property sold; that on the 16th day of August, 1898, he and Harrington being each owners of one-half interest in such property, he then bought Harrington's interest under a contract, by which he was to publish the paper for one year thereafter as a Democratic paper, and to advocate the doctrines of the Chicago platform, and in event he (defendant) failed to so publish such paper, all such property was to revert to and become the property of Harrington, including both his original interest as well as the interest of Harrington thus purchased; that at time of and long prior to the sale to plaintiff by defendant plaintiff had full knowledge of the agreement between defendant and Harrington; that the subscription to such paper at time of its original publication had been largely procured through the influence and personal solicitation of defendant and Harrington, and upon the expressed intention and promise of making it a permanent publication, and as a failure to continue such publication would affect the good name and standing in the community of Harrington and defendant the agreement to continue its publication until August 16, 1899, was so made, and on the 29th day of December, 1898, it had a bona fide circulation of about 600 subscribers, many of whose terms of subscription did not expire until August 16, 1899—all of which was well known to plaintiff at time he bought —and this agreement on part of defendant to so publish such paper rendered his title conditional and qualified, as stated in plaintiff's petition; that at and prior to time he sold to plaintiff, plaintiff represented to and agreed with defendant, as part and one of the considerations and a condition of sale, that he would place the paper and continue its publication upon a more permanent basis, and likewise agreed that he would fill out all unexpired subscriptions without expense to defendant, and at the time plaintiff was insolvent, and made such promises and representations fraudulently for the purpose of obtaining possession of the property, and with no intention of complying therewith; that soon after purchasing such paper—January 5, 1899—plaintiff suspended publication, failed and refused to fill out unexpired subscriptions, and failed and refused to keep his contract to continue its publication to August 16, 1899, and in consequence the title thereto reverted to Harrington; that plaintiff's failure of title to such property was the result of his own voluntary act, and he was not entitled to recover; and the answer concluded with a general denial of all other averments of the petition. The contract between the parties evidencing the purchase and sale, for the price already stated, of the newspaper, with its subscription list and good will, job printing plant, and fixtures complete, continued thus: "The said H. H. Hughes guaranties the conveyance of a clear title to said property. The said H. Clay Neville agrees to fill out all unexpired subscriptions to the Mail without expense to the said H. H. Hughes. The said H. Clay Neville is not obligated by this contract to pay any debts which may have been incurred by those who have operated the Mail heretofore."

The evidence...