Richards v. Johnson
| Decision Date | 07 April 1924 |
| Docket Number | 24024 |
| Citation | 261 S.W. 53 |
| Parties | RICHARDS v. JOHNSON |
| Court | Missouri Supreme Court |
M. J Ostergard and J. G. Hutchison, both of Kansas City, for appellant.
Thos W. Skidmore, of Kansas City, for respondent.
SMALL C. I.
Appeal from the circuit court of Jackson county. Suit for specific performance of contract to exchange plaintiff's farm in Howard county, Mo., for defendant's house and lot in Kansas City, Mo. Petition alleges contract was dated November 15, 1920, and was to be consummated November 30, 1920; that plaintiff put his deed in escrow on the date the contract was made as required by the contract, and so did the defendant but that defendant afterwards notified the title company, which held the deeds, not to deliver his deed to plaintiff. Petition further alleged that plaintiff was ready and willing to go on with the contract and accept the defendant's deed, and to permit his deed to be delivered to the defendant as required by the contract; that plaintiff's property was to be taken subject to a deed of trust of $ 1,000, and defendant's property subject to a $ 2,000 incumbrance. The answer admitted the execution of the contract, and then contained a general denial. It further alleged that plaintiff represented there had been a $ 2,000 mortgage on his farm at one time, and it could be mortgaged for $ 2,500, meaning to convey the idea thereby that it was worth $ 4,000; that such representations were false; also that plaintiff before said contract was made agreed to get a loan of $ 1,000 for the defendant in addition to the $ 1,000 loan thereon, so as to make his property have a $ 2,000 incumbrance, to which plaintiff was by the contract to take the defendant's property subject. This the plaintiff failed to do. Answer further alleged that under the contract plaintiff was to deliver the abstract of title to his farm within three days after the date of said contract, which he also failed to do; that time was the essence of the contract in this regard, and that defendant was damaged by reason of plaintiff's default. Answer also alleged 'that an examination of the abstract of title to plaintiff's said property reveals' the fact that there is now a deed of trust of $ 1,000 on said property, and that the note thereby secured is long past due and unpaid. Wherefore defendant prayed judgment. The reply put the new matter in the answer in issue, except it admitted plaintiff's abstract was not delivered within the three days stipulated in the agreement, but alleged that defendant was estopped from taking exceptions to such default, for the reason that defendant accepted said abstract and had same examined, according to the admission in the defendant's answer. The testimony of the plaintiff was given by himself, A. L. Parks, and D. W. Long, the real estate agents who represented the plaintiff in making the contract. The evidence for the defendant was given by the defendant himself -- no other witness. Plaintiff's evidence tended to support the petition and the waiver of the time of delivering the abstract set up in the reply. It also contradicted the allegations in the answer as to plaintiff's farm having had a $ 2,000 mortgage on it at one time, and that a $ 2,500 loan could be procured thereon, and that the plaintiff or his agent, Parks, agreed to procure another $ 1,000 loan for defendant on his house before the contract was made. Other details of the pleadings and the evidence will be referred to in the opinion.
The court found the issues for the plaintiff -- made a special finding of facts -- and rendered judgment for the plaintiff as prayed in his petition. Defendant duly appealed.
II. The first point made by appellant is that the petition fails to state a cause of action because it does not allege that defendant was the owner of the land he was to give in exchange for plaintiff's land. We must rule this against appellant, because the petition alleges that 'defendant was in possession and claimed to be the owner' thereof, and, 'being desirous of disposing of said land he claimed possession and owner of,' entered into the contract. The petition also alleges that defendant 'executed a warranty deed conveying said property * * * to plaintiff,' and placed it in escrow.
We think the allegation of ownership in defendant sufficient to withstand a general demurrer.
III. It is also contended that the petition did not allege plaintiff had performed his part of the contract, or that he was prevented from so doing by defendant, But the petition does allege plaintiff delivered his deed to the Missouri Abstract Company, to be held in escrow as required by the contract, and that he was willing to fulfill all the terms of the agreement, but defendant had instructed said abstract company, who was named in said agreement to hold said deeds in escrow, not to deliver said deed executed by defendant to plaintiff, and defendant refused and still refuses to deliver same to plaintiff. The only matter to be performed by plaintiff under the contract not alleged in his petition to have been performed by him was the delivery of his abstract within three days from the date of the contract.
The answer pleaded this requirement of the contract, and that it was violated. The reply set up waiver by accepting and examining the abstract when it was delivered. The answer thus cured any defect in the petition in this regard. Although the petition should, perhaps, have alleged the delivery of the abstract as required or its waiver by defendant ...
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