Redman v. Adams

• Decision Date: 19 November 1901
• Citation: 65 S.W. 300,165 Mo. 60
• Parties: REDMAN v. ADAMS.
• Court: Missouri Supreme Court

65 S.W. 300

165 Mo. 60

REDMAN v. ADAMS.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

PLEADING — CONSTRUCTION — CONTRACTS — ASSUMPSIT — EVIDENCE — SALE — BREACH OF CONTRACT — APPEAL — REVIEW — HARMLESS ERROR — ERRONEOUS INSTRUCTIONS — FAILURE TO EXCEPT — CONFLICTING EVIDENCE.

1. Plaintiff's petition set out the terms of an agreement made by him and defendant's testator whereby the latter should convey within a specified time 660 acres of land, and furnish an abstract showing clear title, and the former should deliver a stock of merchandise and convey within a certain time certain land, and furnish an abstract showing clear title; the parties binding themselves to pay $1,000 as actual damages for a breach, and in addition, in case of breach by the former, the latter might return the stock of merchandise, or its consideration, less the running expenses and $1,000, as actual damages. The petition alleged the delivery of the stock of merchandise at the value fixed by the parties' inventory, failure on the part of defendant's testator to make proper conveyance of the land, and failure to furnish an abstract showing title, and asked judgment for the value of the goods as determined by the inventory. Held, that the petition, though stating all the facts as provided for by the Code, constituted an action on an implied assumpsit for goods sold and delivered, which was proper, the law implying a contract on the part of defendant's testator to pay the reasonable value of the goods, when the contract between the parties was silent in respect thereto, and hence an objection that the suit was an attempt to enforce an uncompleted express contract was without merit.

2. A defendant sued on an implied assumpsit for goods sold and delivered may show that the contract price is not the reasonable value, though such contract price is prima facie evidence of such value.

3. Under Rev. St. 1899, § 865, providing that the court of appeals shall not reverse the judgment of any court unless it shall believe that error was committed by such court against the appellant, materially affecting the merits of the action, the giving of an erroneous instruction is not ground for reversal, when the proper finding by the court, under the evidence, was rendered.

4. When no exception was made to a finding in the trial court, or the objection thereto was not called to the atention of the trial court in the motion for a new trial, such finding cannot be reviewed by the court on appeal.

5. When the testimony as to the quantum of damage sustained by a party was conflicting, the finding of the trial court is not open to review on appeal.

6. A conveyance of 600 acres of land, and the giving of an abstract showing defects in title, such as unreleased mortgages, outstanding dower rights, and no record title, is not a compliance with a contract requiring within a specified time the conveyance of 660 acres and the furnishing of an abstract showing clear title, without attempting within the specified time to convey the 60 acres, or without showing title by limitation.

Appeal from circuit court, Iron county; Jas. F. Green, Judge.

Action by Loid H. Redman against Martha Adams, executrix of the estate of John E. Adams, deceased. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action begun on March 27, 1897, to recover $7,598.34, the alleged value of a stock of goods delivered by the plaintiff to John E. Adams about the 8th of January, 1896. The plaintiff lived in Monroe county, and Adams lived in Butler county. Adams owned a stock farm in Butler county, which he said contained 660 acres, and was worth $18,000. Redman owned several tracts of land in Monroe county, which were worth $11,720. Redman also owned a stock of merchandise, which, according to an invoice thereof made by the representatives of Redman and Adams on the 1st of January, 1896, was worth $7,598.34. On the 7th of January, 1896, Redman and Adams agreed in writing to exchange said properties; Adams to pay Redman $1,200, the excess in value of Redman's land and stock of goods over the value of Adams' farm. It was agreed that each party should execute a warranty deed to their respective real property, and should furnish to the other an abstract of title, "showing title to be free and clear of all incumbrances, and showing title sufficiently good and satisfactory to party accepting title." Adams also agreed to have released a deed of trust on his farm within three months, and to furnish an abstract showing such deed of trust released, "and title satisfactory"; and Redman agreed within 30 days thereafter "to have the incumbrances on his lands released and paid off, and abstract showing title free of all liens, and title sufficiently straight and satisfactory to first party or his attorney." It was further agreed that each party should retain possession of his land until the 1st of March, 1896, but Redman was granted permission to go onto Adams' farm before that date and plow and put in a crop. It was also agreed that the deeds and abstracts should be delivered by each party to W. W. Longmire, and that he should hold them until the consideration was paid. Redman executed and delivered a bill of sale of the stock of goods on January 7, 1896, and delivered possession of the goods to Adams. The contract contained these further provisions: "It is mutually agreed and understood that a forfeiture of the sum of one thousand dollars is hereby agreed upon, to be paid by the party failing or refusing to comply with this agreement within a reasonable time, as designated, to close this trade; said sum of one thousand dollars to be paid as actual damages by the party failing or refusing to carry out his part of the agreement. In case of failure or inability to carry out this trade in accordance with this contract on the part of said second party, then in that event said first party may transfer to the second party the stock of merchandise or its consideration (part of the stock being sold), less running expenses counted out, and less the sum of one thousand dollars, the agreed amount as actual damages: Now, as first party has not paid any part of the consideration under this trade, or put up any earnest money, he agrees and binds himself to make and execute a good and sufficient bond to said Redman in the sum of one thousand dollars, to be approved by cashier of Poplar Bluff Bank, of Butler county, Missouri, as a forfeiture bond, to be in full force and effect. In case of failure or refusal to carry out this contract and complete trade within a reasonable time from time agreed on as stated, and in case of a failure or refusal or inability of first party to comply with this trade and agreement, he shall pay the said Redman the sum of one thousand dollars, as the agreed amount of actual damages for such noncompliance with this agreement. This contract shall be binding upon the heirs and assigns of both first party and second party herein." Adams took possession of the stock of goods on the 7th of January, 1896, and continued to sell them at retail. He paid Hargadine, McKittrick & Co. the sum of $500 on account of what Redman owed that company, and as a part of the $1,200 difference he was to pay Redman. About the 1st of February Redman entered upon Adams' farm, through a tenant, and put in a crop, and rented the farm to a tenant for a year, and Redman afterwards tendered to Adams the rent for a year. On the 24th of March Adams mailed a deed and an abstract of title to his farm to Longmire. The deed was for only 600 acres, and not for 660 acres, as the contract called for; and the abstract showed that Adams' title to a large portion of the land was defective, that much of the land was incumbered by mortgages, and that as to a part of it the abstract of the records showed no title whatever in Adams. Adams was notified that his title was not good and clear. He and Redman and Longmire had an interview in Monroe City. Redman offered to give Adams any reasonable time in which to perfect his title, and Adams refused to do anything towards making his title clear, claiming that he had title by limitation to all the land he proposed to convey where the records failed to show that he had title, and not attempting to correct his deed so as to convey 660 acres; but he proposed to rescind the trade if Redman would take back the stock of goods as they then were, without any accounting as to those sold, and refused to pay the $1,000 damages agreed on as a penalty if he did not carry out his part of the...