Olmstead v. Smith

• Citation: 87 Mo. 602
• Parties: OLMSTEAD v. SMITH et al., Appellants.
• Decision Date: 31 October 1885
• Court: Missouri Supreme Court

87 Mo. 602

OLMSTEAD

v.SMITH et al., Appellants.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Jackson Circuit Court.--HON. F. M. BLACK, Judge.

AFFIRMED.

Johnson & Lucas for appellants.

(1) The petition does not state a cause of action. ( a) Because it asks for a judgment for purchase money of real estate and yet does not tender a deed and fails to allege that a deed had been tendered or delivered to defendants. Scudder v. Waddingham, 7 Mo. App. 26, and cases cited. ( b) A deed in escrow is not delivered. 3 Washburn Real Prop., side pages 585-6; Townsend v. Hawkins, 45 Mo. 286; Melton et al. v. Coffelt, 59 Ind. 310. ( c) The second subdivision of the answer was a good defence as against an action for the entire purchase money. ( d) As the petition was defective, the demurrer of plaintiff to second subdivision went back and attacked it. Green & Myer Mo. Practice, sec. 927. (2) A party will not be permitted to contradict the allegations of his pleadings by testimony. Bruce v. Sims, 34 Mo. 246; Cap. Bk. v. Armstrong, 62 Mo. 59; Nichols, Shepherd & Co. v. Larkin, 79 Mo. 271; Baldwin v. Munn, 2 Wend. 399; Oakley v. Morton, 11 N. Y. 25. (3) Plaintiff was not entitled to a judgment for the purchase money, while he held the title; and the deed was not tendered in the petition or on the trial. 3 Wash. R. P., 581; Thompson v. Jackson, 10 Bush. (Ky.) 424; Yonge v. Gilbeau, 3 Wall. 641; Dietrich v. Franz, 47 Mo. 85; Pershing v. Canfield, 70 Mo. 140. The verdict should have been set aside and a new trial granted. Plaintiff cannot sue for purchase money and recover as for breach of contract. Kirkpatrick v. Downing. 58 Mo. 32.

Peak & Yeager for respondent.

(1) Under the pleadings and undisputed facts of this case, it was not necessary either to allege a formal tender in the petition or to make a formal tender at the trial. 3 Wash. R. P. 574; Sherley v. Ayres, 14 Ohio St. 308, (2) The deed having been executed and approved by appellants and left with said Cooper at their request and with their consent, in pursuance of said obligation, said Cooper was as much their agent as the respondent's, and no tender or delivery was necessary on the part of the respondent. See same authorities. (3) This suit being upon said obligation under seal the facts set up in the second subdivision of the answer constituted no defence and the demurrer was properly sustained. (4) If the improvements on the premises had been destroyed after May 3, 1882, the loss would have been upon the appellants. Snyder v. Murdock, 51 Mo. 175. (5) Under the pleadings and evidence it was fully shown that after May 3, 1882, the relation of landlord and tenant existed. Lockwood v. H. & St. Joe Railroad, 65 Mo. 233. (6) We do not think there was any variance between the pleadings and proofs, but even if it was conceded that there was, such variance shall not be deemed material unless it has actually misled the adverse party to his prejudice, in maintaining this defence, and the statute provides how such fact must be shown. R. S., sec. 3565.

NORTON, J.

This suit is based on the following agreement:

“Whereas, George P. Olmstead has this day sold Smith & Keating all of lot six (6) in block five (5) in Lucas place, addition to Kansas City, Missouri, for the sum of nine thousand dollars. And whereas, the said Olmstead and wife have this day duly signed and acknowledged a proper deed of conveyance. And whereas, it is mutually agreed that said deed shall not be delivered until November 1, 1882; and whereas, said nine thousand dollars is to be paid upon the said November 1, 1882; therefore, is it mutually agreed that said Olmstead shall have the use of said premises, rent free, until November 1, 1882. And it is mutually agreed that the deed as aforesaid shall be delivered and placed in possession of J. A. Cooper, to be held by him for the mutual benefit of all parties; and whenever the said Smith & Keating shall pay said nine thousand dollars, upon said first day of November, 1882, said deed to be delivered to said Smith & Keating, or to be delivered at any time prior thereto, upon the joint order of said Olmstead and Smith & Keating. In the event of the death or inability of the said Cooper to act, then in said event the president of the Citizens' National Bank shall be by this article substituted in the place of said Cooper with like powers.

In witness whereof, we have hereunto set our hands and seals, this third day of May, 1882.

GEORGE P. OLMSTEAD,

[Seal.]

SMITH & KEATING.

[Seal.]”

The petition sets up said contract and avers that defendants had refused to pay said sum of nine thousand dollars; that plaintiff under the contract retained possession of the premises till first day of November, 1882, when he vacated the same. The answer of defendants was, (1) a general denial and (2) that on or about the third day of May, 1882, they entered into an executory contract with plaintiff to purchase the premises on the first day of November, 1882, at nine thousand dollars, but did not execute said contract on the first of November, 1882, and the same was never executed by them or plaintiff; that about the middle of November, 1882, plaintiff informed defendants that he (plaintiff) regarded said contract as an optional one so so far as he (plaintiff) was concerned; that defendants now decline to execute said contract and abandon the same; that they have never received a deed for or taken possession of said premises; that plaintiff was on the third day of May, ever since has been and now is in the exclusive possession of the same.

A demurrer was interposed to the second defence set up in the answer which was sustained and this action of the court is assigned for error, it being contended, not only that the answer was sufficient, but that as the demurrer cut back to the petition the court in determining it ought to have decided...