Payne v. Brooke

• Decision Date: 14 January 1920
• Docket Number: No. 2385.,2385.
• Citation: 217 S.W. 595
• Parties: PAYNE v. BROOKE
• Court: Missouri Court of Appeals

217 S.W. 595

PAYNE v. BROOKE

No. 2385.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Crawford County; L. B. Woodside, Judge.

Action by Chesterfield Payne against Lincoln Brooke and another. Judgment for plaintiff, a new trial was denied, and defendants appeal. Reversed.

Harry Clymer and A. H. Harrison, both of Steelville, for appellants.

Joel C. Carlson, of Chicago, Ill., and Wm. R. Lay, of Steelville, for respondent.

BRADLEY, J.

Plaintiff sued defendants by attachment, as partners, to recover damages in the sum of $3,800 alleged to have been caused and occasioned by the failure of defendants to keep and observe the terms and conditions of a certain contract. Below, upon trial before the court and a jury, a general judgment was entered against both defendants in the sum of $1,050. We assume that the attachment was sustained, as no mention is made of it here. Unsuccessful in motion for a new trial, defendants appealed.

Plaintiff alleges that he is a resident of the city of Chicago, and that defendants are residents of the state of Illinois, and that defendants are jointly engaged in the business of making contracts for the sale of real estate; that on the 3d day of January, 1912, he entered into a contract with defendants under the name of Lincoln Brooke & Co. for the purchase of 40 acres of land in Crawford county, Mo., for the price and sum of $3,500; that as an inducement and as a part of the consideration the defendants agreed in writing to perform certain work' on the land and to make certain improvements thereon in substance as follows: That defendants agreed to clear a certain part of the land and plow the same with heavy plows with such cutting attachments as to cut and turn up the roots of the small stumps, and to dig up and destroy said roots and stumps and to prepare the land for planting; that defendants agreed to clear one-half of said land and prepare same for planting; that they would set out and plant such fruit trees and vines as might be desired by plaintiff, and would care for and cultivate the land and the trees planted thereon and destroy the roots and sprouts, and sow the land in clover and in other crops which might be deemed best for the land; that defendants agreed to prune and train and spray the fruit trees and vines to be set out by them in a careful and scientific manner, and from time to time substitute and plant young and healthy trees in place of those that might die. It is alleged that all of these duties and obligations were to begin at the date of the contract, January 3, 1912, and continue for five years; that defendants have failed to keep and observe the terms and conditions of this contract, in that they did not clear the land as agreed, and did not plow the same as agreed, and did not set out, look after, and maintain the fruit trees and vines as agreed, all to plaintiff's damage as stated.

The contract was on a printed form, and the description, price, etc., were filled in. It was signed in Chicago first by plaintiff in the presence of two witnesses, and was delivered to one of these, and later it was returned to plaintiff by mail, and then bore the signature of Lincoln Brooke, and not Lincoln Brooke & Co., above plaintiff's signature. When the contract was returned signed as stated by Lincoln Brooke, it had written with pen, and below the signatures of plaintiff and Lincoln Brooke, this:

"We hereby agree to execute and deliver warranty deed to the above land whenever the purchaser becomes entitled thereto. [Signed] Jennie L. Brooke and Lincoln Brooke."

When the contract was executed, plaintiff paid to Lincoln Brooke $1,600. Plaintiff received a warranty deed from Jennie L. Brooke and Lincoln Brooke for the land described in the contract, and to secure $1,817.30 of the purchase price executed a trust deed to Lincoln Brooke & Co. This trust deed is dated January 3, 1912, the same as the contract, but was not acknowledged until September 11, 1912, about which time plaintiff received his deed. The balance due represented by the $1,817.30 was divided into 53 notes varying in amounts from $30.35 to $40.20, and all dated January 3, 1912, payable monthly from September 1, 1912, to January 1, 1917. At the time of this trial plaintiff had paid all these notes except about $130.

In May, 1919, H. M. Kingsley, of Chicago, who represented Lincoln Brooke in matters generally, and seemed to be like a sore finger, "always on hand," together with others who resided in Cuba, Crawford county, organized under the laws of Missouri the Hofflin Produce & Canning Association, to be located in the village of Hofflin, in Crawford county. This corporation was capitalized at $50,000, and the articles of incorporation recite that $25,000 had been "paid up in lawful money of the United States." Kingsley had 247 shares of the stock, and the other three "organizers" one each. The name of this corporation was on April 19, 1913, changed to Central Produce & Canning Association. The principal activities of this canning association were directed by Kingsley, who occupied "for convenience" the same quarters in Chicago as Lincoln Brooke & Co. In the course of events plaintiff became a stockholder and officer in the canning association, and on March 1, 1914, respecting the lands described in his contract with Lincoln Brooke & Co., entered into a contract with the Central Produce & Canning Association. This contract provided that, in consideration of the payment by plaintiff of $293.61, the canning association, among many other things not material here, agreed:

"After date of this contract the association will, unless prevented or otherwise directed in writing by said member and so long as the member is not in default, furnish and pay for all labor and material and perform all work on said land as follows: The association will begin operations as soon as practical hereafter, and thenceforth proceed by plowing said land, turning up roots and stumps thereon, and prepare said land for planting. The association will as soon thereafter as the season shall properly serve look after and attend to all trees and vines as set out on ten acres in accordance with the rules of good orcharding, on each of said acres, all apple trees or peach trees, or grape vines, of such standard varieties as now planted. After said trees and vines shall have been so set out as aforesaid, the association shall and will, during the period of 34 months from date, cultivate, protect, and care for the same, and shall and will, during said period, replace such of said trees or vines as may die or become diseased during said period to the end that at the expiration of such period there shall be upon each of the acres aforesaid apple trees, peach trees, or grape vines in a thrifty and healthy condition, and that all such cultivation, protection, care, and replacement shall be at the sole cost and charge of the association. Each tract of land shall be separately fenced and have road to the nearest shipping point. The association will, as soon as the land is cleared and ready for same, and at the proper season therefor, plant and care for tomatoes and other garden vegetables between the rows of trees. They shall continue to cultivate, care for, and protect said trees and gather and market all produce, including all fruit thereon, and shall pay the cost and all expense of such cultivation, protection, and replacement, gathering and marketing from the earnings of said produce so raised upon said land. Service for same is not to exceed 20 per cent. of the annual earnings; balance (80 per cent.) to go to the landowners as compensation for use of said land."

This contract contained also this provision:

"The association is to have complete control of said land for the purpose of operating, planting, gathering of crops, and selling of all crops growing upon the land during the agreement."

Plaintiff, so the contract with the canning association recites, paid to the association at the time of the contract $12.50, and signed 33 coupon notes attached to the contract payable monthly from May, 1914, to January, 1917, and these notes varied in amount from $6.10 to $12.50.

At the time that plaintiff entered into the contract with the canning association Lincoln Brooke credited the notes of plaintiff given to secure the trust deed with the amount which plaintiff was paying the canning association. As we understand the record, the trust deed notes were credited with the amount of the corresponding canning association note falling due on same date as trust deed notes so credited. And at this time, according to the evidence of Lincoln Brooke and another witness, by mutual, agreement between Lincoln Brooke and plaintiff, the original contract sued on here was canceled. The alleged cancellation was written in red ink across the face of the contract, and is as follows:

"By mutual agreement this contract is hereby canceled, and is made null and void the same as if never entered into. Warranty deed and trust deed and notes for a lesser sum exchanged in full compromise and settlement. [Signed] Chesterfield Payne. Lincoln Brooke & Co."

Plaintiff denied signing this release, while defendants offered evidence in abundance tending to show the genuineness of the disputed signature. Plaintiff visited his land occasionally, and, not finding promising prospects to justify his outlay, filed this suit for damages on the 24th day of January, 1917, shortly after the expiration of the five-year period mentioned in the contract.

Defendants sought to quash the service had upon them, and, being unsuccessful, answered separately. Defendant Jennie L. Brooke in her answer admitted that she was a resident of Illinois; averred that the court had no jurisdiction over her person; that the attempted service on her was null and void; denied the execution of the contract and the existence of the alleged partnership. She further...