Otto v. Young

• Decision Date: 01 March 1910
• Parties: OTTO v. YOUNG et al.
• Court: Missouri Supreme Court

127 S.W. 9

227 Mo. 193

OTTO v. YOUNG et al.

Supreme Court of Missouri, Division No. 1.

March 1, 1910.

1. VENDOR AND PURCHASER (§ 141) — CONTRACT — CONSTRUCTION — ABSTRACT OF TITLE.

In a contract written on a printed form, a clause containing an express agreement to furnish an abstract was erased by vendor, but still remaining, in the clause immediately following, was this sentence, "The buyer to have 20 days for the examination of the abstract and report to the seller any defects in the title," and at the conclusion of the paragraph, therein treating of the event in which the contract is to become null and void, said "the money deposited aforesaid should be returned to the buyer and the abstract to the seller." Held, that assuming the purchaser was to procure an abstract, as no time was limited in which to procure it, the law gave a reasonable time, and the 20 days for examination began to run after that time, and the abstract did not require the purchaser to notify vendor of defects within 20 days from the date of the contract.

2. VENDOR AND PURCHASER (§ 144) — PERFORMANCE BY SELLER — PERFECTING TITLE AS BEING OPTIONAL — RIGHTS OF PURCHASER.

A contract provided that, "If the title is found to be defective, the seller agrees to have the same rectified within a reasonable time, which is not to exceed 30 days from the date of written notice of such defects; but in case such defects in the title be not remedied within that period, and no extension of time is had between the parties hereto, this contract shall be null and void," etc. Held, that this did not give the seller an option to rectify the title or not as he chose, and declare the contract void, and that this provision was to protect the purchaser, who need not accept a defective title unless he chose to waive the defect.

3. CONTRACTS (§ 161) — CONSTRUCTION — SEPARATE CLAUSES.

A separate clause in a contract should be interpreted in the light of a preceding clause.

4. SPECIFIC PERFORMANCE (§ 121) — DEFECTS IN TITLE — NOTICE AND WAIVER THEREOF — EVIDENCE.

Evidence held to show that, if 20 days mentioned in a contract for notifying vendor of defects in the title began to run from the date of the contract, vendor waived such time limit and continued negotiations for a sale long after the

lapse thereof, and that he never notified the purchaser of his election to declare the contract void for failure to give such notice.

5. SPECIFIC PERFORMANCE (§ 121) — ABILITY AND WILLINGNESS TO PERFORM CONTRACT — EVIDENCE.

Evidence held to show that a vendor was able but unwilling to perform his contract.

6. SPECIFIC PERFORMANCE (§ 19) — PERSONS NOT PARTIES TO CONTRACT.

Persons not parties to a contract could not be required to specifically perform the same.

7. VENDOR AND PURCHASER (§ 134) — TITLE OF VENDOR — INCUMBRANCES — DUTY TO REMOVE.

Though a special tax assessment for park and boulevard which was a lien on land in June next preceding the date of a contract of sale of the land was not then payable, it was an incumbrance which vendor should remove.

8. SPECIFIC PERFORMANCE (§ 14) — SALE OF LAND — PERFORMANCE OF CONTRACT — ABILITY OF VENDOR.

Where deeds are made by third persons owning land to be delivered by one contracting to sell it, if the contract be viewed as made by an unauthorized agent for their benefit, it became their own by ratification, and, if viewed as having been made by vendor under the impression that the land was his, they sought to enable him to fulfill it by conveying the title to the purchaser for that purpose, and in either case they participated so far in the transaction as to enable the vendor to specifically perform.

9. SPECIFIC PERFORMANCE (§ 131) — SALE OF LAND — FORM OF DECREE.

The ancient chancery practice was to require defendant, under penalty of incurring the court's displeasure and pains attending thereon, to execute a deed in performance of his contract; but Rev. St. 1899, § 785 (Ann. St. 1906, p. 754), accomplishes the same end by passing the title by decree, and section 3743 (page 2088) authorizes the decree to be recorded like a deed, and a decree which does not require defendants to do anything towards making specific performance, but accomplishes its purpose by decreeing that title be vested in plaintiff, and that a copy of the decree be recorded, conforms to the Missouri practice.

10. EQUITY (§ 39) — POLICY AS TO SETTLING CONTRACT IN ONE SUIT.

Equity favors settling in one suit all the controversy if it can be done.

11. SPECIFIC PERFORMANCE (§ 106) — PROPER PARTIES TO SUIT.

There was sufficient unity of interest in the owners of interests in land and another, who contracted in his own name to sell the same, to justify joining them as defendants in one suit for specific performance.

12. TENDER (§ 25) — PAYMENT OF MONEY INTO COURT.

If the plaintiff states his facts to the court and puts his money into its hands to be paid to whom it shall adjudge entitled under the facts, it amounts to his divining before final judgment who was entitled thereto, and tendering the money into court for him.

13. PLEADING (§ 9) — STATING FACTS AND LEAVING LAW FOR COURT.

Under our system of pleading it is sufficient if the pleader states the facts and leaves the court to find the law.

14. EVIDENCE (§ 82) — PRESUMPTIONS — JUDICIAL ACTION.

The law presumes the court is going to decide the law correctly and give to every one his dues.

15. APPEAL AND ERROR (§ 1039) — HARMLESS ERROR — PLEADING.

Defendants are not hurt by demands in the petition impossible of performance, where they are not required by the decree of which alone they can complain.

16. APPEAL AND ERROR (§ 1033) — REVIEW — ERROR IN FAVOR OF COMPLAINING PARTY.

To the extent that a decree favors a party he cannot complain thereof on appeal.

17. ELECTION OF REMEDIES (§ 6) — BREACH OF CONTRACT AND SPECIFIC PERFORMANCE.

A purchaser could not sue for breach of contract and also for specific performance, and should be put to his election.

18. SPECIFIC PERFORMANCE (§ 4) — OTHER REMEDY.

A purchaser, in case of vendor's unwarranted refusal to perform, may elect to sue for damages for breach of contract or for specific performance.

19. ELECTION OF REMEDIES (§ 9) — INCONSISTENT REMEDIES — VOLUNTARY DISMISSAL.

Mere institution of a suit for damages for breach of a contract dismissed before judgment does not bar suit for specific performance thereof.

Appeal from Circuit Court, Jackson County; H. L. McCune, Judge.

Suit by W. H. Otto against Robert Young, Jr., and others. From a decree for plaintiff, defendant Robert Young, Jr., and others of the defendants appeal. Affirmed.

H. C. Meriwether and C. E. Denham, for appellants. Saml. J. McCulloch and Karnes, New & Krauthoff, for respondent.

VALLIANT, J.

This is an appeal from a decree requiring of appellants specific performance of a contract for the sale of land. The petition was in two counts, the first being in the nature of a bill to quiet title under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), but when the trial came the plaintiff dismissed as to that count. The second count on which the cause went to trial, and on which the decree appealed from was rendered, states substantially as follows: Under date September 12, 1904, defendant Robert Young, Jr., executed a contract to sell to the plaintiff the land in question for the price of $6,000, of which $100 was deposited with the defendant Robert Young, Jr., at the time, and $5,900 was to be paid him upon his delivering to the plaintiff a warranty deed, the title having been found to lie in him, and plaintiff tenders into court, for the use and benefit "of whom it may concern," the balance of the contract price, $5,900, or so much thereof as the court may by its decree order plaintiff to pay. That the land in suit was owned by Robert Young, Sr., in his lifetime, now deceased, who was the father of defendant Robert Young, and who for identification is in the petition called Robert Young, Sr., while defendant Robert is called Robert Young, Jr. That by the will of Robert Young, Sr., the title to this property passed to the defendants, his widow and children, and they had all conveyed their interests to the defendant Robert Young, Jr., or to such person as he may have named. The defendant Manter also had an interest in the land which he had in like manner conveyed to defendant Robert Young, Jr. That defendants German, the unknown heirs and widow of George R. Hewitt and John Edwards, each claim an interest in the land, and, if their claims are found to be valid, that the plaintiff be allowed a diminution in the agreed purchase price to the extent of the value of their claims. That certain special tax assessments were at the date of the contract a lien on the land, and therefore the balance of the purchase money to be paid by plaintiff should be diminished by that much. In the last clause of the petition plaintiff asserts that certain acts should be required of defendants to perfect the title that he should receive from Robert Young, Jr.; but, as none of those acts was required in the decree, it is unnecessary to state them here. The prayer of the petition was for "such relief as to the court may seem meet and proper."

To that petition defendant Robert Young, Jr., filed an answer, in which he admitted the execution of the contract of September 12, 1904, for the sale of the land in question, and filed with his answer as an exhibit thereto a copy of the contract. Further answering, he stated that the contract was "purely optional"; that plaintiff by its terms had 20 days in which to investigate the title and report to defendant any defects found, and the seller was to have 30 days in which to remedy the defect, and, if not remedied within the time, and no extension thereof agreed on, the contract was to become void; that plaintiff did not give notice of defects in 20 days, and when given the defects were of such a character as could not be remedied in 30 days;...