Pioneer Gold Mining Co. v. Price

• Decision Date: 03 May 1915
• Docket Number: No. 11491.,11491.
• Citation: 176 S.W. 474,189 Mo. App. 30
• Parties: PIONEER GOLD MINING CO. v. PRICE.
• Court: Missouri Court of Appeals

176 S.W. 474

189 Mo. App. 30

PIONEER GOLD MINING CO. v. PRICE.

No. 11491.

Kansas City Court of Appeals, Missouri.

May 3, 1915.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Action by the Pioneer Gold Mining Company against Elizabeth Price. Judgment for defendant, and plaintiff appeals. Affirmed.

John V. Goodson, of New Cambria, for appellant. Dan R. Hughes and John R. Hughes, both of Macon, for respondent.

JOHNSON, J.

The trial court sustained defendant's objection to the introduction of evidence on the ground that no cause of action is stated in the petition, and on the refusal of plaintiff to plead further entered judgment for defendant. Plaintiff appealed.

The action is for the recovery of money plaintiff paid to defendant on the purchase price of a farm in Macon county, which defendant sold to plaintiff for $8,000 and agreed to convey upon the payment in full of the purchase price, with interest at 7 per cent. per annum on the deferred payments. The contract of sale, which was entered into December 6, 1909, contained an acknowledgment by defendant of the receipt of a down payment of $2080.23 on the purchase price, and required plaintiff to pay the remainder in quarterly installments of $200 each, beginning 90 days from January 1, 1910. It gave plaintiff the privilege of paying all of the purchase price on or before January 1, 1911, or of paying 50 per cent. in that period, and the remaining 50 per cent. on or before January 1, 1912. Time was not made of the essence of the contract, nor was any provision made for terminating the contract and liquidating damages in case plaintiff should fail to pay the quarterly installments as stipulated. It was provided that, "on payment of the purchase price as above, the said first party [defendant] agrees to execute a deed to said second party," and "that said second party is to have possession of said premises during the pendency of this contract, and may farm or mine thereon." No mention was made in the contract of any incumbrances or liens on the land, and the obligation assumed by defendant was to convey the fee-simple title to plaintiff free of incumbrances when the purchase price was paid in full, either in the time and manner required or in the shorter optional periods.

Five days before entering Into this contract defendant incumbered the land by deed of trust securing the payment of a loan of $2,000, which by its terms matured in five years. Plaintiff alleges that it had no knowledge of this incumbrance until some time early in the fall of 1911, and that "when it became aware of said incumbrance it ceased to make payments toward the purchase price of said property, and demanded of defendant the return of all payments made, but the defendant refused and still refuses." Further, plaintiff alleges that "the defendant, on or about the 7th day of February, 1912, retook possession of the said 80 acres, exercising ownership and control thereof, and that defendant continues to exercise ownership over same, enjoying the rents and profits therefrom." Plaintiff was in possession of the land from the date of the contract until it voluntarily surrendered possession to defendant on February 7, 1912, and during the year 1910 made payments amounting to $578 on account of the quarterly installments of $800 which matured in that year. In the following year payments amounting to $381 were made, the last on August 11, 1911. It was shortly after the latter date that plaintiff learned of the deed of trust on the land, and declared a rescission of the contract, and returned the land to defendant's possession; but we infer from the petition that plaintiff had constructive notice of that incumbrance.

The theory of the petition is that the deed of trust deprived defendant of the power to perform the contract, and constituted a breach of the contract which gave plaintiff the right to rescind and recover the payments made on the purchase price, which amounted, in all, to $3,039.23. The petition discloses that, before its alleged discovery of the incumbrance, plaintiff, from the first, had breached the conditions of the contract relating to the quarterly payments, and at the time it ceased to pay was in arrears. Before declaring a rescission and demanding a return of the purchase-price payments, plaintiff did not tender performance of the contract and demand a deed conveying the land discharged of the incumbrance, nor is such tender made in the petition. Defendant at no time agreed to rescind the sale, unless such agreement may be implied from her acceptance of the possession of the land. She is...