Scannell v. American Soda Fountain Company

• Decision Date: 29 March 1901
• Citation: 61 S.W. 889,161 Mo. 606
• Parties: SCANNELL, Appellant, v. AMERICAN SODA FOUNTAIN COMPANY
• Court: Missouri Supreme Court

61 S.W. 889

161 Mo. 606

SCANNELL, Appellant, v. AMERICAN SODA FOUNTAIN COMPANY

Supreme Court of Missouri, First Division

March 29, 1901

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Reversed and remanded (with directions).

Wm. C Jones, James C. Jones, J. E. McKeighan, Shepard Barclay and M. F. Watts for appellant.

(1) The plaintiff fully performed the contract in all respects. (a) The contract identifies the lot to be transferred by plaintiff as the one on which "is situated the double threestory brick building, marked and known as Nos. 310 and 312 Market street." This is a more specific description of the lot to be conveyed than the general words import which describe mere space. The house is a fixed and visible object, a monument. It is well-settled law in Missouri that in describing property of this class, calls for visible monuments prevail over mere general descriptions, and over courses and distances. McGill v. Sommers, 15 Mo. 80; West v. Bretelle, 115 Mo. 653; Smith v. Land Company, 117 Mo. 438; Harding v. Wright, 119 Mo. 1. Under the above authorities, plaintiff's conveyance (without the eastern nine inches) satisfied the contract on his part. (b) The contract shows upon its face that the manifest intention of the parties was to include the lot covered by the buildings, not including the nine inches to the east thereof. The intention of the parties controls even if the language used must yield to effectuate that intention, which here, however, it need not do. Pressnell v. Headley, 141 Mo. 186; Ryland v. Banks, 151 Mo. 1; Grady v. Casey, 93 Mo. 595. (2) The fact that a penalty was provided by the contract in case of fatal defect in the title does not preclude the specific performance of the contract. Greffett v. Williams, 113 Mo. 106; Brown v. Norcross, (N. J.) 45 A. 605. (3) Specific performance will be decreed, though the title rests solely on adverse possession for the period required by the statute of limitations. Luckett v. Williamson, 31 Mo. 54; Bicknell v. Comstock, 113 U.S. 152; Fugate v. Pierce, 49 Mo. 441; Key v Jennings, 66 Mo. 356; Abrams v. Rhoner, 44 Hun, 509; Ottinger v. Strassberger, 33 Hun, 466; affirmed 102 N.Y. 692; N. Y. Steam Co. v. Stern, 46 Hun, 210; Pratt v. Eby, 67 Pa. St. 396. (4) It is sufficient if appellant have a good title at any time prior to the decree. Luckett v. Williamson, 37 Mo. 395; Isaacs v. Skrainka, 95 Mo. 524; Baldwin v. Salter, 8 Paige, 473; Oakey v. Cook, 41 N.J.Eq. 364; Pierce v. Nichols, 1 Paige, 244; Brown v. Hoff, 5 Paige, 235; Jenkins v. Fahey, 73 N.Y. 355; Seymour v. Delancy, 3 Cowen, 445; Dressel v. Jordan, 104 Mass. 416. (5) No easement existed over the three feet at the south end of the property, and hence there was no defect of title in this particular. The supposed easement had been completely merged and abandoned and wiped out by lapse of time. Am. & Eng. Ency. of Law (1 Ed.), p.146; Jones on Easements, sec. 866; Ten Broeck v. Livingston, 1 Johns. Ch. 361; Dunham v. Joyce, 129 Mo. 13; Chandler v. Jamaica, 125 Mass. 549; Corning v. Gould, 16 Wend. 531; Monaghan v. Memphis Fair Co., 11 Pickle (95 Tenn.) 108; Washburn on Real Property (3 Ed.), p. 661; Snell v. Levitt, 110 N.Y. 595; Jones on Easements, secs. 849, 852, 855, 861, 862, 863. (6) Time is not of the essence of the contract, on the facts shown in this record. Mastin v. Grimes, 88 Mo. 478; Woodward v. Van Hay, 45 Mo. 300; Pomeroy v. Fullerton, 113 Mo. 440; Melton v. Smith, 65 Mo. 315; Gressell v. Jordan, 104 Mass. 415; Stevenson v. Polk, 71 Iowa 293. (7) If time were of the essence of the contract, appellant offered to perform within the time stipulated. Mastin v. Grimes, 88 Mo. 478; White v. Dobson, 17 Gratt. 262; Oakey v. Cook, 41 N.J.Eq. 362; Stevenson v. Maxwell, 2 N.Y. 408; Vance v. Eaton, 21 Minn. 409. (8) Plaintiff did not abandon the contract, nor rescind. Melton v. Smith, 65 Mo. 315. (9) The supposed uncertainty respecting the lease was wholly immaterial. (a) The terms of the lease were contingent upon the performance of the contract on the part of the defendant. Plaintiff agreed to accept a lease on the terms defined, but defendant did not agree absolutely to give plaintiff the lease. The lease was optional, therefore, with defendant. As defendant repudiated the contract and refused to perform, it can not claim that any uncertainty in the lease was a barrier to specific performance. One who repudiates and breaks a contract is not entitled to recover as upon performance. St. Louis v. McDonald, 10 Mo. 609; Billups v. Daggs, 38 Mo.App. 367. (b) The feature of the contract touching the lease is severable from the main agreement, and any uncertainty in that feature would not prevent the specific performance of the main contract. Gourlay v. Somerset, 19 Ves. 429; Sarter v. Gordon, 2 Hill, Ch. 121; Fry, Spec. Perfm., sec. 217; Pomeroy, Spec. Perf., sec. 161. (10) Finally, had plaintiff's title been actually defective, the defects were of such a small and insignificant nature that the court should have decreed specific performance, with compensation for the trivial defects. 22 Am. & Eng. Ency. of Law (1 Ed.), 60, 956, 957; 2 Kent's Commentaries, p. 475; Hepburn v. Dunlop, 5 Cranch, 262; Hepburn v. Dunlop, 1 Wheaton, 179; King v. Bardeau, Johns. Ch. 38; Calcraft v. Roebuch, 1 Ves. Jr. 221; Beyer v. March, 2 Sweeny (32 N. Y. Super.), 715; Chamberlin v. Lee, 10 Sim. 444; Hart v. Handlin, 43 Mo. 171; Key v. Jennings, 66 Mo. 356; De Wolff v. Pratt, 42 Ill. 210; Tawner v. Ticknor, 112 Ill. 217; McWhorter v. McMahon, 10 Paige, 386.

Stewart, Cunningham & Eliot for respondent.

(1) Plainly the parties made, and intended to make, time of the essence of this contract. Furthermore, in the subsequent extensions of time to fixed short future periods by written indorsements signed by both parties, the intention of the parties to make time essential, is clearly shown. The court will not strip the contract of that condition. Rector v Price, 1 Mo. 373; Russell v. Geyer, 4 Mo. 384; Glass v. Rowe, 103 Mo. 538; Pomeroy v. Fullerton, 131 Mo. 592; Hollman v. Conlon, 143 Mo. 377. (2) The contract contemplates and requires title on both sides, perfect of record and otherwise, at the time fixed for performance, as essential to performance or obligation to perform; and failure of plaintiff's record title existing July 17, 1897, was a defeasance of the contract. Defendant was thereby released from all obligation to make the contemplated trade. Noyes v. Johnson, 139 Mass. 436; Vought v. Williams, 46 Hun, 638; Pratt v. Eby, 67 Penn. St. 404; Hartley v. James, 50 N.Y. 42; Schultz v. Rose, 65 How. Pr. Rep. 75; Chaffin v. Hull, 49 F. 525; Rozier v. Graham, 146 Mo. 361. (3) Plaintiff's title to the Market street property, described in the contract, was not, on July 17, 1897, perfect or good, by the records or by possession. At that time he had no right, title or interest whatever, by record or possession, to or in a substantial part of the land specified in the contract as the land to be conveyed by him; and half at least of that land he then possessed was burdened and incumbered by easements and servitudes not mentioned in the contract. (4) At the time of final decree, plaintiff's title to the land described in the contract to be conveyed by him was not perfect or marketable. It was not a title good beyond all reasonable doubt. It was open to possibility of attack. Rozier v. Graham, 146 Mo. 361; Chaffin v. Hull, 49 F. 525; Luckett v. Williamson, 31 Mo. 57, 58; Hymers v. Branch, 6 Mo.App. 515; Birge v. Bock, 24 Mo.App. 336; s. c., 44 Mo.App. 70; Mastin v. Grimes, 88 Mo. 478; Waterman on Specific Per., sec. 412; Mitchner v. Holmes, 117 Mo. 184; Gerhart v. Peck, 42 Mo.App. 644; Jones v. Williams, 139 Mo. 90; Brown v. Massey, 138 Mo. 532; Herryford v. Turner, 67 Mo. 298; Hill v. Rich Hill & Co., 119 Mo. 27; Filley v. Pope, 115 U.S. 213; King v. Knapp, 59 N.Y. 462; McFerran v. Taylor, 3 Cranch, 270; Wetmore v. Bruce, 118 N.Y. 319; McPherson v. Schade, 149 N.Y. 16; Jeffries v. Jeffries, 117 Mass. 184; Raynor v. Lyon, 46 Hun 227; Butts v. Andrews, 136 Mass. 221; Cunningham v. Blake, 121 Mass. 333; Newbold v. Peabody, etc. Co., 70 Md. 493; Peabody, etc. Co. v. Willson, 82 Md. 186; Mott v. Mott, 68 N.Y. 246. (5) It is immaterial here that defendant did not, before July 17, 1897, notify plaintiff of every defect in plaintiff's title. Defendant was under no obligation or duty to do that. The question is, was or was not plaintiff's title perfect within the meaning of the contract? No estoppel arises against defendant to insist upon defects not pointed out at the time fixed for performance. None was pleaded. Greffet v. Willman, 114 Mo. 118; Railroad v. Curtis, 154 Mo. 20. (6) The provisions of the contract as to a lease of the Market street property by defendant to plaintiff are part and parcel of the agreement, going to the whole consideration, and inseparable from the rest, and yet are not of mutual obligation, and are so vague, indefinite and uncertain as to make it impossible for the court to enforce them. Glass v. Rowe, 103 Mo. 513; Hollmann v. Conlon, 143 Mo. 378; Davis v. Petty, 147 Mo. 383; Mastin v. Halley, 61 Mo. 196; Taylor v. Williams, 45 Mo. 80; Louthan v. Stillwell, 73 Mo. 492. (7) This is not a case for specific performance with compensation for defects. 22 Am. & Eng. Ency. of Law, p. 943; Filley v. Pope, 115 U.S. 213; King v. Knapp, 59 N.Y. 462; McFerran v. Taylor, 3 Cranch, 270; Wetmore v. Bruce, 118 N.Y. 319; Walsh v. Hall, 66 N.C. 233; McPherson v. Shade, 149 N.Y. 16; Drake v. Shields, 7 N.Y.S. 209; Jackson v. Ligon, 3 Leigh, 161. (8) Even when contracts for conveyance of land are unconditional and absolute in terms, specific execution of them by a court of equity is a matter not of absolute right, but of sound...