Pomeroy v. Fullerton

• Decision Date: 23 January 1893
• Citation: 21 S.W. 19,113 Mo. 440
• Parties: Pomeroy, Appellant, v. Fullerton
• Court: Missouri Supreme Court

21 S.W. 19

113 Mo. 440

Pomeroy, Appellant, v. Fullerton

Supreme Court of Missouri, First Division

January 23, 1893

Appeal from St. Louis City Circuit Court.

Reversed and Remanded.

Thos B. Crews and Hough & Hough for appellant.

(1) It was not incumbent upon plaintiff to allege either that Reveley or the plaintiff erected the dwelling houses mentioned in the agreement, or to give any sufficient reason for the non-performance of that part of the agreement. The improvement of the property was not to be begun until after the delivery of the deed and possession under it. The deed has never been delivered, and neither has Reveley nor the plaintiff been in possession of the property. (2) It was not necessary that plaintiff should specifically allege tender of money and request for a deed after the cloud was removed; the refusal of defendant to execute and deliver a deed to plaintiff, which is alleged, would excuse a tender, if it were necessary, and the allegation that plaintiff and Reveley have performed all of the conditions of the contract to be performed by them, and that defendant has refused to perform is made in the petition, and under the statute that is sufficient. Mastin v. Grimes, 88 Mo. 478; Revised Statutes, 1889, sec. 2079. (3) The contract sued on is not a building contract, and the objection of want of certainty and mutuality must therefore fall to the ground. The contract is one, the specific performance of which, so far as plaintiff is concerned (apart from the payment of money and the execution of his notes), rests in covenant merely. Stocker v. Wedderburn, 3 Kay & Johnson, 393, 403; Wells v. Maxwell, 32 Beav. 408; Wilson v. West Hartelpool, 2 De Gex, Jones & Smith, 475. After the contract sued on is executed between the parties, plaintiff has a year in which to perform his covenants to begin to build, and defendant may never have any occasion to complain of a breach of said covenants, and, in view of the stipulation for forfeiture, certainly would have no occasion to sue upon such covenants. (4) The contract sued on contemplated an assignment and covenants binding the assignee. Reveley is not a necessary party, and if he were "defect of parties plaintiff" should have been made a distinct ground of demurrer. Revised Statutes, 1889, secs 2043, 2044, 2047, p. 540; McClurg v. Phillips, 49 Mo. 315. (5) The ojection that the contract could not be assigned is answered by its terms set out in the petition. (6) The objection that if there was any breach of the agreement it occurred prior to the assignment, and the assignment could not carry to the assignee the right to recover thereon is fully answered by the case of Melton v. Smith, 65 Mo. 315. (7) If there has been any laches on the part of plaintiff or Reveley, that is an equitable defense which must be pleaded in the answer. "Laches presupposes not only delay, but knowledge of such facts as render the delay culpable." Butler v. Lawson, 72 Mo. 227; Melton v. Smith, 65 Mo. 315. No laches appear on the face of the petition, and it alleges a reason excusing the mere lapse of time before instituting suit. (8) No question can possibly arise as to the right of Fullerton to have specific performance of the covenant of plaintiff to erect buildings of a certain class, and there could be no action against Reveley for damages on his covenants because of the terms of the agreement set out in the petition and of the covenants which were to be entered into by Reveley or his assigns.

Henry M. Post for respondent.

(1) The exhibits are no part of the petition, and are not made so by reference to them therein. Hall v. Harrison, 21 Mo. 227; Curry v. Lackey, 35 Mo. 389; Bowling v. McFarland, 38 Mo. 465; Kerr v. Ins. Co., 40 Mo. 19; Poulson v. Collier, 18 Mo.App. 608; Furnishing Co. v. Wallace, 21 Mo.App. 132; Peake v. Bell, 65 Mo. 224. (2) The first ground of demurrer is well taken. The erection of the dwelling houses mentioned in the agreement as recited in the petition was, under its terms, "to be commenced within one year after the date of said contract, and they were thereafter to be finished with all reasonable speed. It was not provided that the erection should commence within one year from the date of the deed; the time was measured from the date of the contract. (3) Plaintiff was bound to aver payment or tender of the aliquot part of the purchase money which was to be paid in cash and tender of a deed with the covenants required on his part. The party seeking the enforcement of a contract must affirmatively show performance or tender of performance of the covenants on his part. Basye v. Ambrose, 32 Mo. 484; St. Louis v. Cruikshank, 16 Mo.App. 495; State ex rel. v. Hudson, 13 Mo.App. 61; Scott v. Robards, 67 Mo. 289; Pier v. Heinrichoffen, 52 Mo. 33; Mastin v. Halley, 61 Mo. 196; Lanitz v. King, 93 Mo. 513; Kerr v. Simmons, 82 Mo. 275. (4) The alleged agreement does not furnish the details from which the court could frame a deed with such covenants as it could compel the parties to execute. The agreement is too indefinite and uncertain to enable the court to frame a contract for the parties. Mastin v. Halley, 61 Mo. 196; Paris v. Halley, 61 Mo. 453; Story on Equity Jurisprudence [12 Ed.] secs. 723, 769, 770; Fry's Specific Performance, secs. 76, et seq., 317, 361, 366. (5) The alleged contract, as stated in the petition, was an executory contract, resting in personal trust and confidence, and therefore could not be assigned. Lansden v. McCarthy, 45 Mo. 106; Boykin v. Campbell, 9 Mo.App. 495. (6) The assignment by Reveley under which plaintiff claims was seven years after the agreement sued on was alleged to have been made, and if any breach occurred at all, it occurred long prior to the alleged assignment. The breach, if any, consisted in defendant's failure to convey to Reveley, not in his subsequent conveyance to other parties; and the alleged assignment could not carry to the assignee the right to recover for previous breaches. Love v. Van Every, 18 Mo.App. 196. (7) It is evident from the face of the agreement alleged in the petition that the alleged contract, if executed at all, was entered into by defendant with a view of enhancing the value of his own property, and the said Reveley and said plaintiff have allowed too long a time to elapse, and have slumbered too long on such rights, if any, as they might have acquired under said alleged agreement, to be permitted now to come into court and make a demand for specific performance of said alleged contract, or for damages for non-performance thereof. Lanitz v. King, 93 Mo. 513; Landrum v. Union Bank, 63 Mo. 56; Bliss v. Pritchard, 67 Mo. 181; Sullivan v. Railroad, 94 U.S. 806; Kline v. Vogel, 90 Mo. 239; Schradski v. Albright, 93 Mo. 42; Burgess v. Railroad, 99 Mo. 496. And the objection of laches can be raised by demurrer to the bill when the same appears on its face. Burgess v. Railroad, 99 Mo. 496. (8) Even if defendant's title was in litigation so that he could not have made a good title, there was no excuse for the delay. It is averred that the litigation had been settled and a good title can now be made. The petition does not show when the litigation was settled, nor when the plaintiff or Reveley learned the fact. It might have been within a few days after the contract was made. There is no averment of diligence after the termination of the litigation. Lanitz v. King, 93 Mo. 513. (9) Plaintiff expressly avers that the alleged pending litigation was not known to plaintiff or Reveley. Consequently, then, its pendency was not the reason for their default for seven years, and it can afford no excuse for their laches.

OPINION

Brace, J.

This is an appeal from a judgment of the circuit court of the city of St. Louis sustaining a demurrer to the following petition:

"Plaintiff states that heretofore, to-wit, on the nineteenth day of April, 1883, the said defendant, Joseph S. Fullerton, was the owner in fee and seized of the following described real estate situate in the city of St. Louis and state of Missouri, to-wit: A certain tract or parcel of land commencing at the intersection of the west line of Boyle avenue with the north line of McPherson avenue; thence running about one thousand feet west with the north line of McPherson avenue to the east line of Newstead avenue prolonged, and having a depth northwardly of one hundred and forty-two feet and six inches, to an alley running east and west. And that on the day aforesaid defendant bargained contracted and agreed with one M. P. Reveley to sell the said tract of land to said Reveley at and for the price and sum of $ 20 per front foot, of which price one fifth was 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; and said deferred payments to be secured by a deed of trust on said real estate. And it was then and there further contracted that the said Reveley, for himself and assigns, should bind himself and them by deed that none of said property should be used or sold for any manufacturing or trade purposes, or for any horse car or livery stable, and that said Reveley would further bind himself by said deed to improve said property by erecting thereon dwelling houses suitable to the neighborhood, and to commence the erection thereof within one year from the date of said contract, and, after commencing the same, to finish them with all reasonable dispatch; and it was further stipulated in said agreement that said defendant Fullerton should make and deliver a deed for said property to Reveley not later than the middle of May, 1883.

"Plaintiff further states that thereupon the said Reveley paid to said defendant, J. S. Fullerton, the sum of $ 100, as a part payment of...