Pomeroy v. Fullerton

• Decision Date: 11 December 1895
• Parties: Pomeroy, Appellant, v. Fullerton
• Court: Missouri Supreme Court

33 S.W. 173

131 Mo. 581

Pomeroy, Appellant, v. Fullerton

Supreme Court of Missouri, First Division

December 11, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

Thos B. Crews and Hough & Hough for appellant.

(1) The contract was one for a marketable and indefeasible title, and for a good and sufficient deed to the same. The written contract is inconsistent with and contradicts defendant's testimony on the trial, that Reveley knew at the time the contract was made there was a cloud on the title and was willing to accept a deed to the land notwithstanding such cloud. Lucket v. Williamson, 31 Mo. 54; Rawle on Covenants [3 Ed.], p. 562, note 4, and p. 565; Mitchner v. Holmes, 117 Mo. loc. cit. 205. Besides, it is wholly improbable that Reveley, or his assigns, would have contracted to erect buildings on real estate held under a doubtful title. (2) The discovery by Reveley of the cloud on the title after the execution of the contract excused him and his assigns from performance, or tender of performance, until the cloud was removed and defendant could make him a good title. Mastin v. Grimes, 88 Mo. 478; Melton v Smith, 65 Mo. 315; Snyder v. Spaulding, 57 Ill. 480. (3) The retention of the purchase money by defendant and of the contract by Reveley, and the assignment of said contract in 1884 by Reveley to plaintiff, are uncontroverted facts which disprove the claim that the contract was either rescinded, or abandoned, in 1883, and these facts are corroborated by testimony for the plaintiff, and by the admission of the defendant that something may have been done by him on account of the contract to remove the cloud from the title, as he needed the money very much. Snyder v. Spaulding, 57 Ill. 480; Melton v. Smith, 65 Mo. 315; Pratt v. Morrow, 45 Mo. 405; Chouteau v. Iron Works, 83 Mo. 73. (4) The existence of the cloud upon the title deprived the defendant of any right to rescind the contract until the removal of the cloud, and the retention of the purchase money after the removal of said cloud, and his failure to attempt a rescission of the contract after removal of said cloud, constitute a continued and continuing affirmance of the existence of said contract. Melton v. Smith, 65 Mo. 315; Mastin v. Grimes, 88 Mo. 489. (5) Plaintiff has been guilty of no such delay as constitutes laches in this case. Defendant made no offer to return the purchase money even at the trial, and still retains it. He can not continue to hold the money and yet plead laches. Such a position on the part of defendant constitutes an actual fraud upon the plaintiff, and a court of equity will not assist him in perpetrating such fraud. Melton v. Smith, 65 Mo. 315; Mastin v. Grimes, 88 Mo. 478; Snyder v. Spaulding, 57 Ill. 480; 12 Am. and Eng. Encyclopedia of Law, p. 544, note 4; Cramer v. McSwords, 24 W.Va. 594. (6) There is sufficient proof of tender before suit in this case, but tender need not be made before suit, especially when delivery of the deed and payment of the purchase money are to be concurrent acts. Nor is tender necessary where defendant avows, as in this case, that he would not have received the money had the same been tendered. Atkinson v. Hudson, 44 Ark. 192; Boyce v. Francis, 56 Miss. 573; Johnson v. Sukeley, 2 McLean (U.S.) 562; Railroad v. Cox, 76 Iowa 306; Mitchell v. Long, 5 Litt. (Ky.) 71; Webster v. French, 11 Ill. 254; Anderson v. White, 27 Ill. 57; Mastin v. Grimes, 98 Mo. 489; Dcichman v. Deichman, 49 Mo. 107; McLeod v. Snyder, 110 Mo. 298. (7) Defendant contracted to convey a good title. He accepted the part purchase money knowing of the cloud on the title, and when the vendee was ignorant of the defect of title. His acceptance of the money was in bad faith, and, as he has at no time offered to return it, his equitable defenses, if he has any, are not entitled to any consideration at the hands of a court of equity. The retention of the purchase money and failure to offer to return it, even at the trial, is an affirmance of the contract and a waiver of all such alleged defenses. (8) The court erred in excluding the testimony of plaintiff's witnesses as to the acts of Logan and his connection with the transaction. What Logan did and his connection with the sale and the removal of the cloud from the title of the property sold constituted physical facts in the case from which an inference could be legitimately drawn as to his agency for the defendant, Fullerton, Logan being dead at the time of the trial. 2 Greenl. Evid. [6 Ed.] p. 56, section 63; Robinson v. Walton, 58 Mo. 380; Hull v. Jones, 69 Mo. 587; Peck v. Ritchie, 66 Mo. 114.

Henry M. Post for respondent.

(1) There is no evidence of respondent's alleged agreement to extend the time for the performance by appellant or his assignor of his part of the contract. (2) Neither appellant nor his assignor ever made a tender or demand of performance. (3) The contract was incomplete and, therefore, not enforcible in equity. Brown v. Finney, 53 Pa. St. 373; Strange v. Crowley, 91 Mo. 294, 295; Fry, Spec. Perf., secs. 106, 107; Taylor v. Van Schrader, 107 Mo. 225; Waterman, Spec. Perf., sec. 141; Bentz v. Eubanks, 41 Kan. 28; Ford v. Gebhardt, 114 Mo. 298. (4) The contract was uncertain and, therefore, not enforcible. See authorities cited, supra; also, Waterman, Spec. Perf., secs. 144, 149; Colson v. Thompson, 2 Wheat. (U.S.) 536; Martin v. Halley, 61 Mo. 196; Paris v. Halley, 61 Mo. 453; Cherbonier v. Cherbonier, 108 Mo. 263; Wistar's Appeal, 80 Pa. St. 484; 2 Story, Eq. [13 Ed.], sec. 736; Louthan v. Stillwell, 73 Mo. 492; Foster v. Kimmons, 54 Mo. 488; Rogers v. Wolf, 104 Mo. 9; Emmel v. Hayes, 102 Mo. 195. (5) The pendency of litigation was not a sufficient excuse and appellant waited too long after its termination. Mastin v. Grimes, 88 Mo. 478; Atkinson v. Taylor, 34 Mo.App. 452; Vreeland v. Blauvelt, 23 N.J.Eq. 483. (6) Time was of the essence of the contract. Barnard v. Lee, 97 Mass. 92; Cartmel v. Newton, 79 Ind. 1; Shuffelton v. Jenkins, 1 Morris (Iowa), 427; Jones v. Noble, 3 Bush (Ky.), 694; Haggerty v. Elyton Land Co., 89 Ala. 428; Stembridge v. Stembridge, 87 Ky. 91; Pratt v. Carroll, 8 Cranch, 471; Kelsey v. Crowther, 27 P. 695; Edwards v. Atkinson, 14 Tex. 373; Taylor v. Longworth, 14 Peters, 172. (7) The contract was not enforcible against respondent for lack of mutuality. Waterman, Spec. Perf., sec. 196; Glass v. Rowe, 103 Mo. 539; Ramsey v. West, 31 Mo.App. 676; Warren v. Costello, 109 Mo. 343; Mastin v. Grimes, 88 Mo. 478; Marble Co. v. Ripley, 10 Wall. 359; Mastin v. Halley, 61 Mo. 195; Chicago, etc., Railroad Co. v. Wisconsin, etc., Railroad Co., 76 Iowa 615; Walton v. Coulson, 1 McLean (U.S.), 120; Shuffelton v. Jenkins, 1 Morris (Iowa), 427; Jones v. Noble, 3 Bush (Ky.), 697. (8) The opinion in Melton v. Smith, 65 Mo. 315, does not sustain appellant's position. (9) The case of Mastin v. Grimes, 88 Mo. 478, does not sustain appellant's contention. Lanitz v. King, 93 Mo. 513; Atkinson v. Taylor, 34 Mo.App. 442. (10) The case of Snyder v. Spaulding, 57 Ill. 480, does not sustain appellant's position. Fish v. Lightner, 44 Mo. 272; 2 Story's Eq. Jur. [13 Ed.], sec. 742; Taylor v. Williams, 45 Mo. 83; Chouteau v. Railroad, 22 Mo.App. 298; Paris v. Halley, 61 Mo. 461. (11) The retention by respondent of the earnest money did not give appellant a continuing right to demand specific performance. Melton v. Smith, supra; Taylor v. Williams, supra; Mastin v. Halley, supra; Glass v. Rowe, supra; Burlock v. Adams, 20 N.J.Eq. 367; Roby v. Garnett, 78 Ill. 638. (12) Logan's acts or declarations were not binding on respondent. (13) The increase in value clearly appeared from the evidence, and was such as to make it improper for the court to grant appellant's prayer. Merritt v. Brown, 19 N.J.Eq. 286; Ely v. McKay, 12 Allen (Mass.), 323; Penrose v. Leeds, 46 N.J.Eq. 294; Chicago, etc., Railroad v. Stewart, 19 F. 5; Callen v. Ferguson, 29 Pa. St. 247; Maddox v. McQuean, 3 A. K. Marshall, 400; Waterman, Spec. Perf., secs. 470, 475. (14) The claim was too stale to be enforcible. Southcomb v. Bishop of Exeter, 6 Hare, 213; Waterman, Spec. Perf., sec. 469; Rogers v. Sanders, 16 Maine, 92; Milward v. Thanet, 5 Ves. Jr. 720; Hoyt v. Tuxbury, 70 Ill. 331; Cook v. Bean, 17 Ind. 504; Rector v. Price, 1 Mo. 373. (15) The decree prayed for would not be equitable. Willard v. Taylor, 8 Wall. 565; Mastin v. Halley, 61 Mo. 202.

Macfarlane, J. Brace, C. J., and Robinson, J., concur. Barclay, J., does not sit.

OPINION

Macfarlane, J.

The suit is in equity, to enforce the specific performance of the following contract:

"Received of M. P. Reveley, $ 100 on account of purchase money for a certain tract of land agreed to be sold to him on conditions below mentioned: Said tract commences at the intersection of the west line of Boyle avenue with the north line of McPherson avenue, thence runs about one thousand feet west with the north line of McPherson avenue, to wit: to the east line of Newstead avenue prolonged, and having a depth northwardly of one hundred and forty-two feet six inches to an alley to be dedicated, running east and west.

"The undersigned agrees to sell said tract to said Reveley at $ 20 per front foot, one fifth to be paid in cash and the balance in equal payments in one, two, three, and four years with interest at six per cent per annum, payable semiannually, said deferred payments to be secured by deed of trust on said real estate.

"And in consideration of the sale at $ 20 per front foot, which the undersigned considers far below the actual value of the property, the said Reveley for himself and assigns shall bind himself and them by deed that none of said property shall be used or sold for any manufacturing or trade purpose or for...