Quigley v. King

• Decision Date: 27 June 1914
• Citation: Quigley v. King, 168 S.W. 285, 182 Mo. App. 196 (Mo. App. 1914)
• Parties: J. B. QUIGLEY, W. A. LATTIMER, AUGUST HEMAN and H. A. VROOMAN, Respondents, v. M. KING, Appellant
• Court: Missouri Court of Appeals

168 S.W. 285

182 Mo.App. 196

J. B. QUIGLEY, W. A. LATTIMER, AUGUST HEMAN and H. A. VROOMAN, Respondents, v. M. KING, Appellant

Court of Appeals of Missouri, Springfield

June 27, 1914

[Copyrighted Material Omitted]

Appeal from Greene Circuit Court.--Hon. Arch A. Johnson, Judge.

REVERSED AND REMANDED.

STATEMENT.--This case grew out of a promotion scheme. The plaintiffs (respondents) sued as assignees of an option contract, the appellant, a landowner in Douglass county from which the case went on change of venue to Greene county.

On April 14, 1908, appellant King and his wife, as parties of the first part, entered into a written contract with Reynolds and Miller, as parties of the second part, whereby they agreed as follows: "Witnesseth: That the said parties of the first part for and in consideration of the sum of one dollar to them paid by the second parties, or their assigns the receipt of which is hereby acknowledged and the further sum of eight thousand dollars to be paid by said parties, or their assigns, hereby covenant and agree that they will, upon payment of the said sum of eight thousand dollars, and demand made, convey to said second parties, or their assigns, by good and sufficient warranty deed in which his wife shall join, the following described lots, tracts or parcels of land lying and being situated in the county of Douglass and State of Missouri, to-wit: The northwest quarter of the southwest quarter and 30 acres, more or less, off the southwest quarter of the northwest quarter, being all of said forty-acre tract except the land heretofore deeded to J. H. Murray and the southeast quarter of the northwest quarter, except two and one-half acres, more or less, heretofore deed to J. H Murray, and except the southwest quarter of the southeast quarter of the northwest quarter reserved, all in Section 11 Township 26, Range 16.

"It is further agreed and understood between the parties hereto that if the said second parties do not make a payment of one thousand dollars within six months and a second payment of one thousand dollars within twelve months from this date, said contract shall cease and determine, and this contract shall be delivered to said parties of the first part.

"On demand the owner will furnish abstract showing good title. If this option is not exercised by said parties, or their assigns, on or before eighteen months from the date hereof, then this contract shall be void, and no liability shall attach by this contract to either the first or second party."

It is alleged in the petition, and proved, that this contract was on June 30, 1908, assigned by Reynolds and Miller to the Kansas City, Ozarks and Southern Railway Company, and by that company on July 18, 1908, assigned to the Parker-McIntosh Land Company, which, in turn (by authority of the board of directors in August, 1909), on September 22, 1909, assigned the contract to J. B. Quigley as trustee for his co-plaintiffs herein.

The petition avers that plaintiffs as legal holders and assignees of the contract fully complied with all its terms on their part, and paid defendant King $ 1020 of the purchase price and tendered the balance in the sum of $ 6990, but that defendant wholly failed and refused to make and deliver a warranty deed to said land conveying good title thereto, and to furnish plaintiffs an abstract showing good title to said land. Plaintiffs allege that they have at all times been ready to pay the balance of the purchase price to the defendant and have been ready, willing and anxious to consummate the contract, and that defendant has failed to carry out his part of the contract, or to return to plaintiffs said purchase money. Wherefore judgment is asked for $ 1020 with interest. For a second count, the same substantive facts are averred, with the further allegation that plaintiff before the expiration of the eighteen months made demand of defendant to furnish an abstract of title to said land and a good and sufficient warranty deed conveying same to them, but that defendant refused, etc.; that since the contract in question was executed, because of the construction of a railroad contiguous to the land, its value was increased to $ 20,000, and that because of defendant's default plaintiffs have been damaged in the sum of $ 12,000 for which judgment is asked. The contract was, by reference, made a part of the petition, and was attached thereto.

The answer avers that plaintiffs and their assignors committed a breach of said option contract on April 14, 1909, and that, by its terms, it thereby "ceased and determined." Defendant denies that he failed or refused to furnish an abstract and deed, but avers that although no demand was made as the contract requires he did tender to plaintiff Quigley an abstract and deed and demanded the balance of the purchase money and payment was refused. Defendant denies that any tender of the purchase money was ever made. For a second count, the answer proceeds along the same line, averring that defendant was ready, willing and anxious at all times to carry out the provisions of the contract and never at any time refused to comply with the same.

Plaintiffs for reply admit that by the terms of the contract $ 1000 was to be paid within six months from date thereof, and that $ 1000 was to be paid within twelve months from date thereof, and that on failure to pay said amounts within the time specified the contract was to "cease and determine," and admit that said sums were not so paid, but state that on August 29, 1908, and within the first six months plaintiffs at the instance and request of the defendant paid him the sum of $ 500 as part of the purchase price for the land, and that defendant at the time waived payment of the balance due within said six months; that in the year 1910, after the time agreed upon for the second payment and after the time for said contract to "cease and determine," the plaintiffs at the special instance and request of the defendant paid him the sum of $ 520, taking his receipt therefor which recited that said sums were received for payment on the purchase price of the land described in the option contract; and that defendant is now estopped by reason of having so received said sums of money as the purchase money for said land under said contract to say that said contract had become void and "ceased and determined" without first returning said sums of money so received to plaintiffs and placing them in statu quo.

Plaintiffs offered in evidence the option contract, and showed the different assignments, and then introduced the following receipt:

"$ 520.00 Ava, Missouri, Aug. 2nd, 1909.

"Received of Heman, Vrooman, Lattimer and Quigley the sum of $ 520 for part of purchase price on option on my land which expires in October, 1909, and which makes $ 1020 paid to me in all, and leaving a balance due on said property of $ 6980.

"M. KING,"

Plaintiff Heman testified that on or about October 14, 1909, the plaintiffs were ready, willing and able to take the land described in the option contract and pay for it, and that it was not taken "on account of the title not being proper."

Plaintiffs offered in evidence the abstract which defendant furnished, which was certified to on October 19, 1908, and recertified on November 9, 1908.

H. E Bash for the plaintiffs testified that he examined an abstract of the King land for Mr. Quigley and Parker-McIntosh. He was in the abstract business at Ava and Parker sent the abstract to him from Kansas City to see that it was right and brought down to date; that he told them he could not recertify to it as it was incomplete--that several transfers were out; that he examined the records and made slips of transfers that he thought should be in the abstract, and which were on record prior to the certification of the abstract. He was at first uncertain as to when he made the slips with reference to the time the option would expire, saying it was along about then. He testified that Parker-McIntosh sent him $ 500 to turn over to King, which he did, taking King's receipt. Being later recalled, he was asked: "When was it you were called on by Quigley and Heman and Lattimer to look up this abstract and bring it up to date?" he answered: "They called on me quite a while, in connection with this $ 500, quite a while after that, I think just a short time before the option expired that they called on me." He finally stated that he made the examination of the records and prepared the slips after September 22, 1909 (the date of the assignment of the contract from the Parker-McIntosh Land Company to Quigley and the other plaintiffs), and, in fact, after October 2, 1909, which was the date the last instrument appearing on the records was filed for record, and it will be remembered that the option was to expire on October 14, 1909. Bash testified that after he made the slips and not long before the option would expire, King came and got the abstract promising to return it, but would not do so when requested, King's attorney delivering only the detached slips referred to; that at this time Parker-McIntosh had sold out, and that he among other citizens of Ava (Quigley, Miller, and others) were thinking of taking up the option and that Quigley and Miller said something to him about him looking into the title through the abstract books. He was asked: "Do you know why these parties didn't take up the land?" His answer was: "It was in a position that some roads run through there in a position that it wouldn't plat with other land that was optioned there and we couldn't make a plat conform with the plat of the other land on account of the roadway." On cross-examination, he stated that the first slip he prepared showed a quitclaim deed dated July 14, 1906,...