Sims v. Spelman

• Decision Date: 13 June 1921
• Docket Number: No. 13985.,13985.
• Citation: 209 Mo. App. 186,232 S.W. 1071
• Parties: SIMS v. SPELMAN.
• Court: Missouri Court of Appeals

232 S.W. 1071

209 Mo. App. 186

SIMS v. SPELMAN.

No. 13985.

Kansas City Court of Appeals. Missouri.

June 13, 1921.

Rehearing Denied June 27, 1921.

Appeal from Circuit Court, Boone County; David H. Harris, Judge.

Action by Mansil Sims against Dennis Spelman. Judgment for plaintiff, and defendant appeals. Affirmed.

Don C. Carter, of Sturgeon, for appellant.

McBaine & Clark, of Columbia, for respondent.

ARNOLD, J.

This suit grows out of a real estate transaction between plaintiff and defendant, whereby defendant Spelman, Omar D. Gray, and C. M. Robinson sold to plaintiff a farm of 233 acres in Audrain county, Mo., known as the Larrabee farm. There was a written contract entered into between plaintiff and defendant.

The parties to the contract live at Sturgeon, Boone county, Mo. Plaintiff, at the time of the execution of the contract in question, was in the stock feed business. Defendant Spelman is president of the Bank of Sturgeon; Robinson is a farmer, and resides on his farm at the outskirts of Sturgeon; and Gray is editor and proprietor of a newspaper, the Sturgeon Leader. Defendant Spelman, Robinson, and Gray, in the years 1919 and 1920, were associated in the business of purchasing and selling real estate in that vicinity. In this capacity they came into possession of and owned the Larrabee farm in Audrain county, lying just across the line from Boone county. The title to the farm was in Spelman, for convenience in the matter of conveyance. The contract in question was signed by Sims and Spelman, and the latter, accordingly, was named as the only defendant in this suit.

About September 8, 1919, plaintiff approached Spelman, Gray, and Robinson about the purchase of the Larrabee farm, and stated that he would purchase same from them, providing they would accept as part payment therefor plaintiff's buildings and lots and stock in trade in Sturgeon; plaintiff paying the difference of $22,000, less the invoice of his stock in trade, amounting to $611.80, leaving a net balance of $21,388.20, to be paid on the purchase price, which amount defendant agreed to carry back on a first mortgage. This left $7,388.20 to be paid in cash on March 1, 1920, the date stipulated in the contract for closing the deal.

Plaintiff experienced some difficulty in borrowing the $7,388.20 for the payment of which on March 1, 1920, he was obligated. In his search for this loan plaintiff approached, among others, Spelman, Gray, and Robinson, for the loan, but they could promise him nothing. Plaintiff then told Spelman, Gray, and Robinson that he would be unable to close the deal on March 1st, as provided in the contract, and was informed that this would be satisfactory to them, and that the deal need not be closed on March 1st.

About 8 a. m. on March 1st plaintiff saw Mr. Gray and asked for the abstract to the farm, which he had not before seen. The abstract was given into the hands of plaintiff, and shortly afterwards plaintiff informed Gray and Spelman that he was ready to close the deal, but that there were two deeds of trust on the land unsatisfied, and that when they showed him the notes canceled he would close the deal, and not before. Gray informed plaintiff that the notes could not be paid that day, but that this would be done right away, and plaintiff stated the deal was off. Gray that day secured a warranty deed to the farm, but could not locate plaintiff until the night of March 1, 1920, when he tendered him abstract of title and the warranty deed, in which said deed two deeds of trust, aggregating $9,000, were mentioned and assumed by grantor, Spelman, in 10 days, or sooner, if the notes could be gotten from the holders thereof. Plaintiff refused the tender, on the ground that the two deeds of trust were unsatisfied of record, and informed defendant that the transaction was at an end, so far as he was concerned. Plaintiff, in accordance with the terms of the contract, conveyed his Sturgeon property on September 8, 1919, to Spelman, who shortly thereafter sold the real estate for $5,300, and the stock of feed turned over to him under the contract for $536.80.

On May 19, 1920, plaintiff filed suit against defendant. The original petition was in two counts, the first of which was an action for damages for breach of contract, and the second for money had and received. Defendant demurred, and after argument, and pending disposition of the demurrer, plaintiff took leave to amend, and on October 13, 1920, filed his amended petition. The amended petition also was in two counts, identical with the original, excepting for three new paragraphs added to the first count, declaring in more specific terms as to plaintiff's performance of the contract.

Defendant interposed a demurrer to the first amended petition, on the grounds that neither count thereof stated facts sufficient to constitute a cause of action, and that there was a misjoinder of causes of action, in that the first count was for damages for the breach of the written contract, thereby affirming the contract; the second count being for money had and received, thereby rescinding or disaffirming the written contract. The demurrer was overruled.

The first count of the amended petition sets out the contract in full, alleges in detail performance by plaintiff of the terms thereof and the facts practically as stated above, and defendant's failure to perform the terms of said contract by him to be kept and performed, and states that the reasonable value of the real estate and stock in trade in Sturgeon, Mo., transferred by plaintiff to defendant, is $7,611.80, and asks judgment for said amount. The second count charges that on September 8, 1919, plaintiff conveyed by warranty deed to defendant lots numbered 1, 2, 3, and 4, in block 42, of the city of Sturgeon, Mo., and also on said date delivered to defendant a quantity of stock feed, and that defendant, in consideration of the conveyance to him of the real estate and the delivery to him of the stock feed, above described, agreed and promised to pay plaintiff the reasonable price thereof, and that the same was reasonably worth the total sum of $7,611.80, and prays judgment therefor.

The answer admitted the execution of the contract set out in the petition, denied the breach thereof by defendant, and alleged a readiness, willingness, and ability to perform the contract, and an offer to do so, and as to the second count admitted the conveyance to him of the real estate alleged to have been conveyed by plaintiff to defendant, and certain stock feed, but stated that the same was done under and by virtue of the provisions of the written contract in question, and as a part of the purchase price of the farm, and further stated that defendant was at all times ready, able, and willing to carry out specifically the terms of said contract, and offered so to do, if plaintiff would pay the balance of the purchase price.

The reply was a general denial. On the issues thus made the case went to trial to a jury. At the commencement of the trial defendant objected to the introduction of any testimony by plaintiff, on the ground that neither count in the petition stated facts Sufficient to constitute a cause of action, which objection was overruled. The verdict was signed by 9 jurors, and found for plaintiff in the sum of $5,636.80. Defendant appeals.

Counsel for defendant first complains that there was a misjoinder of causes of action in the amended petition, in that they were inconsistent, and that the court was in error in refusing to require plaintiff to elect upon which count he would go to the jury. Section 1221, Rev. Stat. 1919 (section 1795, R. S. 1909), provides:

"The plaintiff may unite in the same petition several causes of action, whether they be such as have been heretofore denominated legal or equitable, or both, where they all arise out of: First, the same transaction or transactions connected with the same subject of action; or, second, contract, express or implied. * * * But the causes of action so united must all belong to one of these classes, and must affect all the parties to the action, and not require different places of trial, and must be separately stated, with the relief sought for each cause of action, in such manner that they may be intelligently distinguished."

21 R. C. L. p. 470, says:

"Under the general rule a quantum meruit count may be joined with a count founded on express contract, or a count for money had and received with a special count. This general rule is a prevailing one, even under the Code practice. * * *"

The former decisions in this state held that an action on contract and quantum meruit could not be joined in...