Powell v. Dorton

• Decision Date: 18 December 1928
• Docket Number: 26768
• Citation: 12 S.W.2d 453,321 Mo. 639
• Parties: J. Hughes Powell v. O. D. Dorton, Appellant
• Court: Missouri Supreme Court

12 S.W.2d 453

321 Mo. 639

J. Hughes Powell v. O. D. Dorton, Appellant

No. 26768

Supreme Court of Missouri

December 18, 1928

Appeal from Montgomery Circuit Court; Hon. Ernest S. Gantt Judge.

Affirmed.

L E. Bates for appellant.

(1) Respondent had no evidence to show any defects in the abstract that he claims was to be furnished him by appellant under the exchange contract, and only attempted to show defects by the copy of an opinion written by his attorney. This was objected to as incompetent and an improper way to establish defects of title. This being the only complaint made by respondent he failed to make a case. (2) The right to rescind a contract must be exercised as soon as any one of the events which give rise to the right happen or is known to the person entitled under it. Thus in the case of a transaction grounded on fraud the party deceived must on the discovery of the fraud elect to rescind or treat the transaction as a contract. Taylor v. Short, 107 Mo 384; Robinson v. Siple, 129 Mo. 208; Quigley v. Bartlett, 260 S.W. 497; Long v. Machine Co., 158 Mo.App. 662; Greenstreet v. Alsch, 189 Mo.App. 533. (3) A person desiring to rescind a contract must tender back the consideration and place the other party in statu quo. Robinson v. Siple, 129 Mo. 208; 9 C. J. 1207; Quigley v. Bartlett, 260 S.W. 494. (4) Rescission of a contract cannot be had where there is only a partial failure to perform. Bules v. Roberts, 189 Mo. 67. (5) When an election is once made the party making it must stand by the election. Bell v. Investment Co., 250 S.W. 382; Taylor v. Short, 107 Mo. 384. (6) Whether there had been a legal delivery of the $ 1000 note and deed to the Montgomery County farm, involving the more fundamental question of the right of Dorton to have the contract enforced, was a proper question for litigation of the $ 1000 note in Clay County, and respondent having failed to raise them in that suit is now barred from raising them in this action, which denies him his right of recovery. Spratt v. Early, 199 Mo. 501; 34 C. J. 909, 910, 911; Nelson v. Nelson, 282 Mo. 412; Norman's Land & Mfg. Co. v. Realty Devl. Co., 205 Mo.App. 474; Donnell v. Wright, 147 Mo. 639; Grennabaum v. Elliott, 60 Mo. 25. (7) Respondent waived the right to have the abstract complained of furnished within the time provided for in the contract by receiving it without objection and examining it after the time fixed for receiving it had expired. Richards v. Johnson, 261 S.W. 55.

Claud D. Hall for respondent.

(1) The appellant's Point 1 is an insufficient assignment of error (as required by Rule 15 of this court) as to the action of the court in admitting the attorney's opinion on the title in evidence. Boggeas v. Jordan, 283 S.W. 58; Barrie v. Richmong Cemeterv, 285 Mo. 130; Pfotenhauer v. Ridgway, 271 S.W. 50; State ex rel. Davidson v. Caldwell, 276 S.W. 631; Am. Packing Co. v. Neese, 277 S.W. 606. The defendant's objection to the introduction of the attorney's opinion in evidence that same was incompetent and immaterial was too general. Magill v. Boatmen's Bank, 250 S.W. 41; Gaty v. United Rys. Co., 251 S.W. 61; Vogts v. Railways Co., 228 S.W. 526; Williams v. Ry. Co., 207 Mo.App. 233; Laster v. Motor Co., 269 S.W. 665. (2) The opinion of respondent's attorney of his examination of the abstract and notice thereof to appellant was a sufficient showing that the title to the Miller County farm was not good under the terms of the contract between the parties. Danzer v. Moerschel, 214 S.W. 849; Acker v. Lipscomb, 300 Mo. 303; Thompson v. Dickerson, 68 Mo.App. 535. (3) The defenses of waiver and election were not properly pleaded; they were mere conclusion of the pleader. Murdock v. Lewis, 26 Mo.App. 234; Crowder Bros. v. Burlington, 176 Mo.App. 657; Totman v. Christopher, 237 S.W. 822; Musser v. Musser, 281 Mo. 649; Johnson v. Crowley, 207 S.W. 235; Dyrcz v. Hammond, 194 S.W. 761. (a) As to waiver, see: Hunt v. Railroad, 152 Mo.App. 182; Dyer v. Cowen, 168 Mo.App. 649. (b) As to election, see: Highfield v. United Press, 190 S.W. 926; Fitzgerald v. Federal, 187 S.W. 600; Hartwig v. Security Mutual, 167 Mo.App. 128; Haughawout v. Royse, 122 Mo.App. 72; Bowman v. Lickey, 86 Mo.App. 47; Langerberg v. Schmidt, 69 Mo.App. 281; Tullis v. Mayfield, 198 S.W. 1073; World's Fair Mining Co. v. Powers, 224 U.S. 173; Edwards v. Johnson, 72 S.E. 638. (4) There was no plea of estoppel. 16 Cyc. 807; Bray v. Maishal, 75 Mo. 327; Noble v. Blount, 77 Mo. 235; Hammerslough v. Cheatam, 84 Mo. 13; Thompson v. Cohen, 127 Mo. 25; Weise v. Moore, 122 Mo.App. 530; Colley v. Ins. Co., 185 Mo.App. 622. (5) There was no pleading of laches. Coleman v. Ins. Co., 273 Mo. 620; Kellogg v. Moore, 271 Mo. 189; Turner v. Edmonston, 210 Mo. 411. Under the facts of the case, plaintiff was not barred by laches. Parish v. Casner, 282 S.W. 392. (6) Plaintiff was not required to place defendant in statu quo before canceling the deed. Plaintiff's petition contained a prayer that certain items be set off against each other and for such orders as to the court seems just. Whalen v. Riley, 61 Mo. 569; Kline v. Vogel, 90 Mo. 239; Paquin v. Milliken, 163 Mo. 79; Hayden v. Railroad, 117 Mo.App. 90, 222 Mo. 126. (7) The former suit of Dorton v. Powell in the Circuit Court of Clay County, on the $ 1000 note, was not res adjudicata as to this suit to cancel the deed for the land of plaintiff Powell in Montgomery County. (a) Because the subject matter passed on in the former suit was not the same as in this suit. Clemens v. Murphy, 40 Mo. 12; Wimpey v. Lawrence, 208 S.W. 54; McMahon v. Geiger, 73 Mo. 145; Brannock v. Magoon, 141 Mo.App. 314; Spradling v. Conway, 51 Mo. 51; Scott v. Page, 224 S.W. 1001; Summit v. Brokerage Co., 208 Mo. 501. (b) Because Powell, defendant in the former suit and plaintiff in this suit, withdrew the equitable defenses and counterclaim filed in the former suit in Clay County and no judgment was rendered thereon. Turner v. Anderson, 260 Mo. 1; Hastings v. Swindle, 206 Mo.App. 74; Haughowaut v. Royse, 122 Mo.App. 72; Cockerill v. Stafford, 102 Mo. 557; Cox v. Imes, 219 S.W. 399. (c) Because the Circuit Court of Clay County did not have and could not have in the former suit jurisdiction to cancel the deed and remove cloud on title to real estate in Montgomery County. 23 Cyc. 684; Sec. 1179, R. S. 1919; Huxley v. Harrold, 62 Mo. 516; Keyte v. Plemmons, 28 Mo. 104; Rodney v. Gibbs, 184 Mo. 1; Castleman v. Castleman, 184 Mo. 432. (8) The plaintiff did not waive the right to have an abstract showing a good title. Plaintiff having given notice of the defect in the title the seller did not thereafter have the option of abandoning the sale, but it was the defendant's duty to rectify the defects. Otto v. Young, 227 Mo. 193.

Henwood, C. Higbee and Davis, CC., concur.

OPINION

HENWOOD

Powell, as plaintiff, filed this suit against Dorton, in the Circuit Court of Montgomery County. The petition is in two counts; first, to cancel a deed to a farm in Montgomery County; and, second, in ejectment and for damages for rents and profits. The trial court found the issues for plaintiff on both counts, and rendered judgment accordingly. The case is here for review on defendant's appeal from that judgment. The following is a correct statement of the pleadings, taken from respondent's brief:

"In the first count of plaintiff's petition plaintiff alleges that he entered into a written contract with the defendant on the 21st of November, 1922, to exchange his 240-acre farm in Montgomery County, Missouri, for 533 acres of land in Miller County owned by the defendant, and plaintiff, was to receive also a certain stock of paints and merchandise in Excelsior Springs, Missouri, and Powell and wife were to execute a note for $ 1000 and secure the same by a third deed of trust on the Miller County farm he was getting in exchange from defendant Dorton. Plaintiff alleges that all the papers to be executed under the contract were as provided by the contract, placed in escrow with one J. A Robinson, in Kansas City. These papers were a warranty deed from Powell and wife to Dorton, covering the 240-acre Montgomery County farm involved in this suit, a deed of Dorton and wife to Powell covering the Miller County farm, and the $ 1000 note of Powell and wife to Dorton, together with a third deed of trust on the Miller County farm securing the said $ 1000 note. The plaintiff also alleged that abstracts were to be furnished by the respective parties covering the respective properties. That the deeds required by the contract were placed with said Robinson. That plaintiff furnished his abstract and fully complied with the terms of said contract, but plaintiff charged that the defendant failed to furnish an abstract as required by the contract. The allegation in regard to the requirements as to the abstract and title was as follows:

"'That it was rurther agreed between plaintiff and defendant that each, within ten days from date of the execution of said contract, would deliver at the office of J. A. Robinson complete abstracts of title to their respective properties from the United States Government to the date of said contract, including certificates in full as to taxes, judgments or other liens, and each party should have three days from said date of delivery for examination of abstracts and report to the other party defects therein, if any, in writing, at the office of J. A. Robinson, and if upon examination it was found that the title to any of the properties being exchanged was defective the party who was to have conveyed such property should have such defects rectified within a reasonable time, which was not to exceed thirty days from the date of written notice of such defects, and that in case such defects were not rectified...