Shannon v. Crabtree, 31613.

• Decision Date: 17 May 1934
• Docket Number: No. 31613.,31613.
• Citation: 71 S.W.2d 709
• Parties: SHANNON v. CRABTREE.
• Court: Missouri Supreme Court

71 S.W.2d 709

SHANNON v. CRABTREE.

No. 31613.

Supreme Court of Missouri, Division No. 2.

May 17, 1934.

Appeal from Circuit Court, Johnson County; Leslie A. Bruce, Judge.

Suit by Finis R. Shannon against Martin A. Crabtree. From a decree in favor of plaintiff, defendant appeals.

Reversed and remanded with directions.

Nick M. Bradley and M. D. Aber, both of Warrensburg, for appellant.

Russell Garnett and H. J. Salsbury, both of Warrensburg, for respondent.

FITZSIMMONS, Commissioner.

Defendant Crabtree appeals from a decree of the circuit court of Johnson county rescinding a contract of exchange of properties between plaintiff and defendant, setting aside a conveyance by plaintiff to defendant of certain real estate in the town of Chilhowee in Johnson county and vesting title to the Chilhowee property in plaintiff Shannon.

Plaintiff's action was a suit in equity. The question for our decision is whether the decree of the chancellor should stand. The petition charged that on December 6, 1926, defendant falsely and fraudulently represented to plaintiff that he was the owner of 317 acres of land in Garfield county, Mont., and of a large number of horses, mares, and colts and a large amount of farm machinery, wagons, implements, and harness, and persuaded plaintiff to enter into a contract to exchange the real estate belonging to plaintiff and situated in Chilhowee, Johnson county, Mo., for the real estate and personal property which defendant claimed to own in Montana. The petition also alleged that plaintiff, relying upon defendant's representations, conveyed to defendant on January 4, 1927, the Chilhowee real estate, but that defendant did not in fact own the real estate and personal property in Montana which he contracted to convey and deliver to plaintiff; that he did not in fact convey them; that accordingly no consideration passed from defendant to plaintiff for the warranty deed to the Chilhowee property of which defendant had possession and to which he held title fraudulently. The prayer was that the conveyance to the Chilhowee property be set aside and for an accounting by defendant for the rents and profits.

The exchange contract was made at Chilhowee December 6, 1926, while defendant was visiting his father, who was ill at his home in Johnson county, Mo. The contract shows that plaintiff's property in Chilhowee consisted of four town lots and three half lots, improved with a four-room dwelling and a store building, and that, at the date of contract, the property was subject to a mortgage for $1,000. The contract also described defendant's land in Garfield county, Mont., and the improvements thereon, subject to a loan of $999 due to the Federal Land Bank at Spokane, Wash. The personal property which defendant contracted to sell to plaintiff in the trade included three sets of double harness, a farm wagon, a cream separator, and about fifty horses, described generally by brands, sex, and spread of ages. The contract, dated, as we have said, December 6, 1926, bears what appears from the evidence to be a subsequent amendment, by which, in consideration of a certain indebtedness from plaintiff Shannon to defendant Crabtree, the latter was to have as security one set of harness, the wagon, and one horse. The amendment also provided that J. Crabtree was to have the use of the property until July 1, 1928.

The testimony in many particulars is obscure, somewhat sketchy, and wanting in essentials. But these facts are clear:

The parties exchanged their deeds. There is no evidence whatever that defendant failed or refused to convey to plaintiff the Montana land or that defendant did not own the Montana land. The decree of the trial court in favor of plaintiff repudiated plaintiff's charge in his petition that defendant totally failed to convey the land and to deliver the personal property by finding that defendant did not deliver to plaintiff the personal property described in the contract and that plaintiff had executed and placed in the hands of the clerk of the court a deed conveying back to defendant the Montana land. The testimony of plaintiff himself shows that the failure of consideration, if there was such, was as to the delivery of the bulk of the horses, and those the range horses.

The contract provided: "All work stock to be delivered on land on or about April 1, 1927 and range stock to be delivered at the gathering time." Clearly delivery of the stock was to be in Montana and, according to the original agreement, at two periods in 1927. Yet plaintiff, on account of illness of his wife and daughter, as he explained, did not go to Montana until March 17, 1928. It was known to plaintiff when he began negotiations at Chilhowee in November, 1926, that defendant was working for an investment company in Montana and that he had rented his ranch and personal property to a man named...