Shaw v. Richards
| Decision Date | 14 January 1922 |
| Citation | 236 S.W. 405,208 Mo.App. 671 |
| Parties | DUDLEY SHAW, Appellant, v. E. L. RICHARDS (Revived in the name of VIOLA RICHARDS, his Administratrix), Respondent |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Scott County.--Hon. Frank Kelly, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Ward & Reeves for appellant.
(1) The court erred in the admissibility of testimony: (a) Because not based upon any pleading or issue in this case. Sims v. Dunham, 203 S.W. 652. (b) Because if defendant had not breached the contract and was entitled to damages by way of set off, this is not the measure of damages. Norris v Letchwood, 140 Mo.App. 19; Norris v. Letchwood, 167 Mo.App. (2) "A plaintiff must put his case to the jury on the precise case made by his petition and proof, and while the petition may be broader than the proof, the proof must not be broader than the petition, and the instructions must not be broader than the proof adduced and limited by the petition." Simms v. Dunham, 203 S.W. 652; Eades v. Telephone Co., 199 S.W. 710; Quinn v Van Raalte, 276 Mo. 71. (3) "An instruction covering the whole case and directing a verdict, should contain every element necessary to recovery." Sutter v. Railway Co., 208 S.W. 251. (4) "A person making a partial payment on parol purchase of land, cannot, upon a failure on his part to complete the purchase, recover the payment made where the seller is willing to make the sale; but if plaintiff's failure to complete his part of the contract is on account of the defendant breaching such parol contract, then plaintiff is entitled to his money back. Scott v. Lewis, 177 Mo.App. 8; Galloway v. Shields, 66 Mo. 313; Lang v. Murphy, 137 Mo.App. 217; Cozad v. Elam, 115 Mo.App. 139; Chamberland v. Lumber Co., 179 S.W. 74. (5) "A plaintiff, who has failed to perform his contract, may recover the money paid by him in part performance to the extent that such payment was in excess of the damages the defendant sustained by cause of plaintiff's breach." Norris v. Letchworth, 167 Mo.App. 553. "But an action of that kind must be based upon a petition which pleads that plaintiff breached the contract and defendant was not damaged, or defendant's damage was less than the amount asked for by plaintiff." Norris v. Letchworth, 140 Mo.App. 19; Norris v. Letchworth, 167 Mo.App. 555-57; Michigan Power Co. v. Burch, 143 F. 929. (6) The right to repudiate a contract for the default of the other party thereto cannot be exercised by a party who is himself in unexcused default of performance of the essential covenant thereof. White Oak Fuel Co. v. Carter, 257 F. 54, 13 C. J. 614. (a) Where money is paid to bind an oral bargain to deed land under a mistaken understanding that a certain agreement had been arrived at, the party paying is entitled to recover it back. McDonald v. Lynch, 59 Mo. 350; Miller v. Fire Brick Co., 139 Mo.App. 33. (b) Outside of the jury finding that the defendant had breached the oral contract, still, the defendant could not recover anyway for the reason that even if plaintiff had been at fault, and defendant having conveyed the land and wholly failing to show that the reasonable market value was less than plaintiff was paying for it and thereby defendant was damaged, then plaintiff was entitled to his money back.
Gresham & Blanton and Gallivan & Finch for respondent.
(1) Appellant seeks to convict the court of error in the admissibility of incompetent testimony upon only a general reference to such error in his "motion for a new trial," which he cannot do. Big Parkis Drainage District v. Lama, 199 S.W. 727; Levels v. Railroad, 196 Mo. 618; Railroad v. Sloop, 200 Mo. 198; Foster v. Railroad, 112 Mo.App. 67; Smith v. Railroad, 122 Mo.App. 85; Bradner v. Power Co., 115 Mo.App. 102. (2) The rule is well settled and springs from the most elemental principles of justice that a party to a contract himself at fault in its performance cannot maintain an action for its rescission. To hold otherwise would be to allow a wrongdoer to take advantage of his own wrong. Norris v. Letchorth, 167 Mo.App. 553, 557, and citations there given; Brinton v. Thomas, 128 Mo.App. 64; Foley v. Harrison, 233 Mo. 460; Barnett v. Railway, 138 Mo.App. 192.
--This suit was brought by plaintiff for the purpose of recovering $ 2000, which he alleges was paid to defendant, Richards, as part payment on a farm which he was buying for a full consideration of $ 18,000. In his petition plaintiff avers that the contract for the purchase of the farm was entirely oral and that in such verbal understanding the defendant agreed to furnish an abstract showing good title, make a warranty deed to the land, and in addition there to agreed to construct a drainage ditch on one side of the land. He then charges that defendant failed and refused to construct such ditch. He therefore charges the defendant with a breach of the contract in respect to the construction of the ditch, and asks judgment for a return of the $ 2000 part purchase money which he paid the defendant to bind the bargain. There is no contention by plaintiff that defendant was in default in any respect concerning the contract other than a failure to construct the drainage ditch.
The record shows that Richards died and the cause was revived in the name of his administratrix, Viola Richards.
The answer of respondent admitted that he and plaintiff entered into a verbal contract for the sale of the farm described in plaintiff's petition but denies every other allegation; and for further answer defendant says that under the terms of the verbal agreement plaintiff paid him $ 2000, the balance to be paid when plaintiff's attorneys examined the abstract which he was to furnish showing good title, and a warranty deed theretofore deposited in a bank. He further pleads that he did furnish such abstract and warranty deed and that they showed that defendant was furnishing a good merchantable title, but that plaintiff failed to pay the balance of the purchase money and refused to go on with the purchase. That by reason of plaintiff's breach in failing to pay the rest of the purchase money defendant was compelled to sell said land to the best advantage he could to other parties, which he did, and thereby suffered a loss of $ 2000. He then alleged "that plaintiff is indebted to this defendant on account of said damage in the sum of $ 2000, being the amount paid as earnest money at the time said verbal contract was entered into." He then alleges that he was at all times ready to carry out his part of the contract, and that although his land was sold to other parties, he is now in position to convey the property to plaintiff on the terms agreed upon in the verbal contract. He closes his answer in the following language: "Wherefore, having fully answered, defendant prays to be discharged with his costs (italics). We italicize the close of the answer showing that it was not the theory of the defendant that he be given a judgment for any amount against the plaintiff on account of the breach, but that he be discharged in the suit brought by plaintiff, showing by the full answer that he made that he was claiming that plaintiff had breached the contract and that by reason of such breach defendant had suffered a loss of $ 2000, which was the amount he had already been paid by plaintiff when the verbal contract was made. We call special attention to this, because in the trial both parties, the court and the jury, seem to have misunderstood the purport of defendant's answer and called and treated the same as a counterclaim.
Turning now to the evidence. Plaintiff testified to facts which sustain the allegations of his petition, that is that defendant agreed to construct a drainage ditch within a certain time, and that he failed to do so.
Defendant by himself and a number of witnesses who were present and took part in the negotiations and trade, denied that there was any agreement at all about constructing a drainage ditch, and that by the terms of the verbal contract he was merely to furnish an abstract and deed showing a good and merchantable title and that he complied in full with his part of the understanding, and that it was plaintiff who breached the contract by refusing to pay the balance of the purchase money, that is $ 16,000, the whole price being $ 18,000. Defendant further testified as to the sale he made after plaintiff's refusal: ...
To continue reading
Request your trial