See v. Mallonee

• Decision Date: 18 October 1904
• Citation: 82 S.W. 557,107 Mo.App. 721
• Parties: SEE, Respondent, v. MALLONEE et al., Appellants
• Court: Missouri Court of Appeals

82 S.W. 557

107 Mo.App. 721

SEE, Respondent, v. MALLONEE et al., Appellants

Court of Appeals of Missouri, St. Louis

October 18, 1904

Appeal from Montgomery Circuit Court.--Hon. H. W. Johnson, Judge.

AFFIRMED.

Judgment affirmed.

James F. Ball and Claude R. Ball for appellants.

J. D Barnett for respondent.

OPINION

GOODE, J.

Action for a balance alleged to be due on the purchase price of a farm. Verdict and judgment for plaintiff for $ 348.80, less a counterclaim of $ 140, which requires no notice in disposing of this appeal.

The undisputed facts are that plaintiff owned a farm in Montgomery county containing about 375 acres. The defendants bought part of it estimated to be 315 acres. When the deed was delivered they paid all the purchase price except $ 133.33, which sum was withheld on an understanding that the land purchased was to be surveyed, and if it proved to be less than 315 acres, defendants were only to pay for what land they actually got. It was thought the several tracts purchased did not exceed 312 acres. The total price was fixed at $ 14,000, on the supposition that there were 315 acres, or $ 44.44 per acre, and the sum withheld represented the price of three acres. This conclusively shows that in the contract that was carried out, the farm was sold by the acre. The survey of the land, which occurred several months after the delivery of the deed, showed there were 319.82 acres, so that the real quantity exceeded the supposed quantity by 4.82 acres instead of falling short. The original contract of sale was between plaintiff and Corey Mallonee and was put into the form of a written instrument dated September 26, 1902. Said instrument describes the different tracts and states the consideration to be $ 14,000, of which $ 1,000 was to be paid at the signing of the agreement, and the balance upon the execution and delivery of a warranty deed. See was to furnish an abstract showing the fee simple title in him clear of incumbrances. Such is the substance of the original contract of sale. The instrument in which it was embodied stated the consideration of $ 14,000 as an ingredient of the contract. By some kind of an arrangement between Corey Mallonee and A. M. Mallonee, the latter became interested in the purchase, and by direction of those parties the deed to the land, which was executed February 24, 1903, named both of them as grantees and stated that an undivided one-half interest was conveyed to each. That deed, besides a covenant of general warranty, contained covenants of indefeasible seizin, of good right to convey and against incumbrances, and was in the common form of deeds of that variety. We quote the consideration clause because it is involved in the main proposition relied on by the defendants:

"This indenture made on the twenty-fourth day of February, A. D., one thousand nine hundred and three, by and between George W. See (a single man), of Montgomery county, Missouri, party of the first part, and A. M. Mallonee and Corey Mallonee of the county of Guthrie, in the State of Iowa, parties of the second part,

"Witnesseth, that the said party of the first part, in consideration of the sum of fourteen thousand dollars, to him paid by the said parties of the second part, the receipt of which is hereby acknowledged, does by these presents grant, bargain and sell, convey and confirm unto the said parties of the second part, etc."

Corey Mallonee and See had an understanding from the first that See should be paid for any excess of land, above 315 acres; though if the original written agreement had been carried into effect perhaps this could not have been shown, because that instrument stated the named consideration as an essential term of it.

The disputed facts are these: See testified that in the latter part of February or early in March, A. M. Mallonee came to Montgomery county from Iowa, where both defendants resided, and an oral agreement was then entered into between him and said Mallonee, representing both of the purchasers, that the written contract for the sale of the land theretofore made between See and Corey Mallonee should be abrogated, and in lieu of it the land should be sold to A. M. Mallonee and Corey Mallonee at $ 44.44 an acre; that it should be surveyed and the actual quantity paid for. The understanding was clear and positive that if there were fewer than 315 acres the Mallonees should have a deduction from the agreed price of $ 14,000, and if there were more See should receive a corresponding addition to the agreed price, which was fixed on the assumption that the tract sold contained 315 acres, neither more nor less. The understanding appears to have contemplated a survey forthwith; but the county surveyor was busy at the time and could not do the work until June. It was necessary for the Mallonees to get the deed immediately so they might give a deed of trust on the land to raise some money, and, therefore, See executed the deed on the date stated, with the understanding we have related in regard to the survey and the change in the price of the land it might work. Meanwhile, as said above, $ 133.33 was withheld by the Mallonees. It was on this verbal agreement as testified to by See and corroborated to some extent by other evidence, that this action is founded.

The petition alleges that the original written contract between Corey Mallonee and the plaintiff was set aside with the consent and at the instance of said Corey and said new arrangement made between the plaintiff and the two defendants. It was conceded by plaintiff's counsel at the trial and ruled by the court, that unless a subsequent agreement abrogating the first one was established, the action would not lie, for the reason that See himself swore it was agreed between him and Corey, prior to the signing of the original contract of sale, that any excess of land must be paid for; hence, that oral stipulation was lost from the first agreement because not embodied in the writing which purported to set forth the contract. Tracy v. Union Iron Works, 104 Mo. 193, 16 S.W. 203.

Without setting out the instructions given it is sufficient to say the theory of all of them was that said original contract must have been superseded by a later one, to authorize a verdict for the plaintiff.

A written contract may be abrogated by a subsequent verbal one entered into between the same parties. Wharton v. Foundry Co., 1 Mo.App. 577. This general proposition of law is not questioned by defendant's counsel, but several objections are raised to its controlling the present case. One objection is that the verbal contract asserted by See was for the sale of the land and ineffectual because of the statute of frauds. The answer to this is that it was completely executed by See giving a warranty deed and putting the defendants in possession of the land bought by them. McConnell v. Brayner, 63 Mo. 461; Bless v. Jenkins, 129 Mo. 647, 31 S.W. 938. This action is, therefore, on a contract which the statute of frauds does not impair and is nothing but an ordinary action to recover a balance of the price of land. Several cases will be cited below which hold the remedy lies.

The proposition chiefly relied on for a reversal of the judgment is that if a verbal agreement was made between See and A. M. Mallonee before the deed was executed, it was superseded by or merged in the deed and as this instrument states the consideration to be $ 14,000, the statement can not be contradicted by oral testimony, because to do so would violate the rule against varying and contradicting written instruments by verbal evidence. Perhaps the admission of verbal evidence does, in point of fact, contravene the rule; but by legal fiction, which is one mode by which the law accomplishes transitions from unsatisfactory rules to better ones, it does not. The consideration clause in the deed from See to the Mallonees, does not attempt to render the sum mentioned ($ 14,000) an essential term of the instrument so as to preclude contradiction or explanation by evidence aliunde; though this may be done, by suitable language, with respect to the consideration of an agreement as well as any other part, if the parties desire. When the consideration of a contract is stated in a written instrument in the form of a mere recital, and not as an element of the contract itself, the true consideration is open to proof by extrinsic evidence when such proof becomes material in actions on covenants or for the purchase price, and like cases; the conclusiveness of the recital going no further than to estop the grantor to deny, except when fraud is alleged, that there was any consideration at all and thereby destroy the effect of his deed. The propriety, if not the necessity, of this exception to the general rule regarding the conclusiveness of instruments, appears from the prevalent custom of constantly reciting fictitious considerations in conveyances of land. No one takes for granted that the amount stated in a deed is the price actually paid for a parcel of land. The true price may be shown in an action to recover it; as is held, we believe, in all jurisdictions except North Carolina. One text-writer says:

"It may be stated as a deduction from the current of leading authorities that, although the acknowledgment of a consideration can not be contradicted for the purpose of defeating or affecting the title conveyed, it is always competent to prove by parol what the real consideration agreed upon was, in an action for the recovery of the purchase-money or upon the covenants. The consideration stated and acknowledged in the deed however, is presumed to be the true value agreed to be paid, until the contrary is proved; though the amount named by the deed is only prima facie evidence of...