Scott v. Davis
| Decision Date | 03 November 1897 |
| Citation | 42 S.W. 714,141 Mo. 213 |
| Parties | Scott, Appellant, v. Davis et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Affirmed.
R. S MacDonald, M. Kinealy and James R. Kinealy for appellant.
(1) John T. Davis, during his lifetime, having offered to make specific performance of the contract mentioned in plaintiff's amended petition, and plaintiff having thereupon waived his action for the $ 5,000 and joined in the prayer for such specific performance, and the offer and the joinder being a matter of record in the court, they constituted an "agreed case," "a solemn judicial admission" for submission of the cause to the court on that issue alone, and that was the only issue remaining before the court for its action at the time of the death of John T. Davis. Booth v. Cottingham, 126 Ind. 431; 24 Am. and Eng. Ency of Law, 152, par. 3; Vanderline v. Smith, 18 Mo.App. 58; Fearing v Irwin, 55 N.Y. 486; 1 R. S. 1889, sec. 2233. (2) The devisees (the widow being a devisee) under the will of Davis are necessary parties to any suit in which a contract to convey the land of the deceased, devised to them, is involved. Burdyne v. Mackey, 7 Mo. 374; Aubuchon v. Lory, 23 Mo. 99; Sturgeon v. Schaumburg, 40 Mo. 482; Dillinger v. Kelley, 84 Mo. 565; Kane v. Railroad, 112 Mo. 34. (3) The devisees (the widow being a devisee) are necessary parties to a suit for specific performance under the contract of John T. Davis to convey his land. 22 Am. and Eng. Ency. of Law, 1065, and cases cited in note 5; Hill v. Ressegin, 17 Barb. 162; Pomeroy on Spec. Per., sec. 494, p. 553; 2 Chitty on Contracts [11 Am. Ed.], 1446. (4) An appearance as executor is not an appearance as heir or devisee. Burdyne v. Mackey, 7 Mo. 374.
John W. Noble and George H. Shields for respondents.
(1) A money demand was unquestionably the only demand made in plaintiff's amended petition, which was for judgment for $ 5,000 and interest, on the fact stated in that petition. This demand was never waived. (2) The executors, as to this money demand, were the only proper parties to be substituted on death of Davis as defendants to resist it, as was done. It was a demand against the estate of the deceased, and the executors were the necessary and only proper parties. R. S. 1889, secs. 95, 2196, 2197. (3) The executors were given the right by statute to adopt the pleadings of the deceased or to amend, and it was in their power to ask of the court to grant an order to dismiss the cross-petition. R. S. 1889, secs. 2200 and 2084; Davis v. Smith, 75 Mo. 219; Pomeroy on Contracts, sec. 490; Fry on Spec. Performance, sec. 115; Perry v. Roberts, 23 Mo. 221; 22 Am. and Eng. Ency. Law, p. 1065; Butler v. Gage, 23 P. 462; Hill v. Proctor, 10 W.Va. 59; Angell v. Steeve, 16 R. I. 200; Potter v. Ellice, 48 N.Y. 323. (4) The answer to the cross-petition distinctly presents another and different contract from that set up by defendant, in that it claims that it was agreed, by this separate contract, plaintiff should have a credit of $ 25,000 on the last payment. (5) An acceptance of an offer to make a contract must not vary from the offer made. The acceptance must be absolute, unambiguous, unequivocal, and without condition or reservation. It must not vary from the offer either by way of omission, addition or alteration; if it does, neither party is bound. Pomeroy on Contracts, sec. 61, 63, 64, and notes; Green v. Cole, 103 Mo. 70; Taylor v. Von Schraeder, 107 Mo. 206.
This action was instituted in the St. Louis Circuit Court against John T. Davis in his lifetime for a straight out money demand of $ 5,000 which the amended petition alleges had been advanced by plaintiff to Davis as a deposit on a contract of purchase of real estate. The title to the land proving defective, defendant Davis was unable to perform, and therefore the plaintiff was entitled to have the said sum returned to him, averring performance on his part. There was a second cause of action in the petition for the same amount of money but based on the failure of Davis to deliver the deed under the contract of sale, and otherwise perform the agreement.
The answer of defendant Davis to the first count of the petition averred that the contract of sale contained a provision forfeiting the deposit of $ 5,000 if plaintiff failed to comply with its requirements, and denied the other allegations of the petition. The answer also averred performance by Davis, and claimed the $ 5,000 as forfeit and not payable plaintiff. As to the second count, the answer while renewing its details as set forth in the first defense, set up certain other provisions of the contract of sale averring want of performance thereof by plaintiff; that he made no objections to the deed tendered, but notified Davis that he would not perform his agreement; that defendant had always been ready to perform the contract on his part. To this portion of the answer the plaintiff's reply was substantially a denial of all the averments thereof.
In addition to his answer defendant Davis set up a cross bill in which he prayed judgment against plaintiff to accept the deed offered and to pay the sums payable, and to secure the payments to be made by notes and deed of trust within a reasonable time to be fixed by the court, with interest as in the contract agreed; or that the contract should be canceled and all sums paid thereunder forfeited to defendant, and for general relief. The cross bill set up the written contract of sale, whereby it was agreed that the plaintiff was to pay defendant $ 200,000, as follows: $ 5,000 at signing the contract, the receipt whereof was acknowledged; $ 45,000 in four months, with interest from maturity; $ 50,000 on or before one year; $ 50,000 on or before two years; $ 50,000 on or before three years from date, with interest at six per cent from the delivery of the deed; deferred payments to be secured by deed of trust; taxes for 1888 and thereafter were assumed by plaintiff; defendant Davis to deliver general warranty deed, and defects, if found, to be rectified in not to exceed sixty days from date at which transfer was to be consummated, and if defects not cured nor extention of time had, said contract to be void and the $ 5,000 to be returned. But if defendant Davis performed his part, and plaintiff failed, the $ 5,000 to be forfeited to Davis; but contract not for this cause to cease to be operative; that time was made the essence of the contract, and the sale and transfer was to be consummated within four months from date of contract. The cross bill further averred the payment of $ 5,000 under the contract; that Davis had always been able, ready and willing to perform, and on performance by plaintiff to convey by warranty deed and deliver possession; that limitations of time had been waived; that on certain times stated, and at other times pending said contract, and now, defendant Davis offered to execute a general warranty deed and tendered same, but plaintiff refuses, and has ever since refused to accept it, and declared he deemed the contract no longer binding; and defendant claimed plaintiff should fully perform the contract or it should be annulled and the money be forfeited to defendant.
Plaintiff replied to the cross bill alleging that "he had no knowledge or information sufficient to form a belief whether or not defendant now is seized of an indefeasible estate in fee to said land, and denies that defendant was so seized on June 18, 1887, but plaintiff is ready to waive such objection on the rendition of a decree, as hereinafter set forth." Plaintiff admits, save as to the description of the land, the contract of sale and purchase is correctly set forth in said cross bill, and the plaintiff avers that he was always ready and willing to perform it on his part, and is now so ready and willing, provided the defendant performs his part according to the true intent and meaning of said contract, as hereinafter set forth. The reply then re-asserts the allegations of the amended petition down to its prayer and makes it a part of the reply. The reply then denies that Davis was able to perform, and as to whether he is now able plaintiff has no knowledge or information sufficient to form a belief, save the statement in the cross bill. The reply then denies waiver of the limitation of time; denies that Davis offered to execute or deliver or tendered the deed; and denies refusal, and again avers readiness to perform the contract according to the tenor and effect as hereinafter set forth. It then avers that Davis has always been in possession of the land, enjoying the rents, issues and profits, and debarring plaintiff therefrom. The reply further alleges "that by a subsequent contract executed between him and defendant, which is herewith filed, for a good and valuable consideration it was agreed between plaintiff and defendant that $ 25,000 of the last deferred payment, $ 50,000, should be remitted to this plaintiff and his obligation to pay same should cease and be discharged." Plaintiff next alleges that "he is now ready and willing to execute and deliver to defendants his notes in due form for the several deferred payments mentioned and provided for in said contract, viz., one for $ 45,000, due four months after date with interest from maturity; one for $ 50,000 on or before one year from date; another for the same amount for two years, and one for the balance to be paid at three years; with six per cent interest from delivery of defendant's deed, with deed of trust, with a release clause, as set forth in said contract of sale and purchase. The said several notes and deed of trust to be dated as of the day of the delivery to plaintiff by defendant of...
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