Peck v. Rea
| Decision Date | 13 May 1925 |
| Docket Number | No. 3773.,3773. |
| Parties | PECK v. REA. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Dallas County; C. H. Skinker, Judge.
Action in ejectment by O. E. Peck against A. S. Rea, wherein defendant filed counterclaim. Judgment for plaintiff for possession and for defendant on counterclaim, and plaintiff appeals. Affirmed.
John S. Haymes, Levi Engle, and O. H. Scott, all of Buffalo, for appellant.
L. C. Mayfield, of Lebanon, and L. F. Lindsey, of Buffalo, for respondent.
Plaintiff filed his petition in ejectment to recover possession of certain described lands in Dallas county. Defendant answered by a general denial and an equitable counterclaim. Plaintiff moved to strike the counterclaim, and, his motion being overruled, he saved exception and filed a reply, putting in issue the new matter set up in the answer. The whole cause was tried on the theory that the pleadings carried the cause to the equity side of the court. The conclusion was reached that under the issues plaintiff was entitled to judgment for possession, and that defendant was entitled to a judgment for $500 against plaintiff. Defendant's judgment was based upon what the court designated as "an equitable accounting between the parties." Plaintiff filed motion for a new trial on the accounting wing of the case, and, a new trial being denied, he appealed.
Plaintiff contends that a counterclaim will not lie in ejectment, and that is the question presented for determination. January 26, 1920, plaintiff and defendant entered into a contract whereby defendant was purchasing plaintiff's farm for $12,000; $2,000 was paid in cash, and another $2,000 was to be paid March 20, 1920, when possession was to be delivered. The remaining $8,000 was to be paid when a loan company approved the abstract and made a loan to defendant. Conditions came about whereby the parties realized that the contract would not be consummated by March 20th, so on March 16, 1920, a second contract was entered into abrogating the first one, and reciting payment of the $2,000, and providing that another $2,000 should be paid "on next Monday, March 22d," if possession was delivered by that date, and, if possession was not delivered by March 22d, then the $2,000 was to be paid when possession was delivered. The remaining $8,000 was to be paid "as soon as abstract on property is approved by loan company from which party of the second part is securing a loan." By the second contract it was provided that the deed from plaintiff to defendant should "remain in escrow with Charity State Bank until the remaining $10,000 is paid in full."
On March 23, 1920, defendant went into possession of the lands involved, but did not pay the $2,000 to be paid when possession was given. Matters were not settled as contemplated, and plaintiff brought ejectment, and In that suit asked for the appointment of a receiver. A change of venue was taken in that cause, and on the eve of its trial a third contract was entered into, and that cause was dismissed. The third contract was entered into on March 7, 1921. This third contract recited that defendant had purchased plaintiff's farm, and that the deed was in escrow, and that there was then due plaintiff "the sum of $10,000, with interest and taxes amounting to the sum of $535." By the third contract defendant was to pay $6,000 on or before May 5, 1921, and on that date was to deliver to plaintiff certain notes amounting to $4,535; $4,000 of which notes was to be secured by second trust deed on the farm, "which said notes and deed of trust are held by W. D. Blankenship in escrow." It was further provided that, in the event defendant failed to comply with the contract, then he was "to hold possession of said land as the tenant" of plaintiff, and was to pay certain portions of the crops as rent, and without notice deliver possession of January 1, 1922. Again consummation was not reached, and the cause at bar was filed February 15, 1922.
In the evidence it appears that each party blamed the other for the failure to finally consummate the deal, but we do not deem it necessary to set out the evidence in detail, as such is not necessary in order to make disposition of the question presented. When the trial started, the record recites:
"The court held that under the pleadings the burden was upon defendant; whereupon the defendant to sustain the issues introduced," etc.
All these contracts were pleaded, and we take it by the recitation, supra, that the court considered, and that the parties acquiesced therein, that plaintiff was entitled to judgment for possession on the pleadings, and that there was nothing to litigate except the issues on defendant's counterclaim.
Defendant's counterclaim is based on the...
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